* 

•< 

L?t 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

LAW  LIBRARY 


REPORTS  OF  CASES 


DETERMINED   IN 


THE  SUPREME  COURT 


TEERITOEY  OF  WYOMING. 


FROM  ITS  ORGANIZATION  TO  THE  MARCH 
TERM,  1878. 


EXTRA   ANNOTATED    EDITION 

E.  A.  THOMAS, 

REPORTER. 


Vol.  1. 


CALL  AC  HAN  &  COMPANY 

CHICAGO 

1912 


,} 


Entered  according  to  Act  of  Congress,  in  the  year  1879, 

By- A.  h.  BANCROFT  &  CO., 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington, 


JUSTICES 

OF 

THE   SUPREME   COURT 

DURING  THE  TERM  OF  THESE  REPORTS. 


J.  H.  HOWE,  CHIEF  JUSTICE From  1869  to  1871 

J.  W.  FISHER,  CHIEF  JUSTICE Since  1871. 


ASSOCIATE  JUSTICES, 

J.  W.  KINGMAN From  1869  to  1873 

WM.  H.  JONES From  1869  to  1871 

J.   W.  CAREY. ; ' From  1872  to  1876 

E.  A.  THOMAS From  1873  to  1877 

J.  B.  BLAIR Since  1876. 

W.  W.  PECK.  ..Since  1877. 


PRESENT  BENCH. 

J.  W.  FISHER CHIEF  JUSTICE. 

W.  W.  PECK J 

>  ASSOCIATE    JUSTICES. 
J.  B.  BLAIR..  .  ) 


CASES  REPORTED. 


PAGE 

Alsop  v.  Hutton 285 

Alsop,  Ivinson  v 251 

Althrop,  Ivinson  v 71 

Anderson,  Territory  v 20 

Bank,  Dayton  v 263 

Bank  v.  Dayton 339 

Bank,  McCarteney  v 386 

Bath  v.  Ingersoll 281 

Bath  v.  Lindenmyer 240 

Bonnifield  v.  Price 172 

Bonnifield  v.  Price 245 

Boswell  v.  County  Commissioners 294 

Boswell,  County  Commissioners  v 294 

Brennau  v.  Heenan 121 

Brown  v.  Ilges 202 

Brown  v.  Nash 85 

Bryne  v.  Myers 355 

Carr  et  al.,  U.  P.  R.  R.  v 96 

Carr  v.  Wright 157 

Church,  Dolan  v 187 

City  of  Cheyenne,  Jenkins  v 287 

County  Commissioners  v.  Boswell 292 

County  Commissioners,  Boswell  v 1*35 

County  Commissioners  v.  llinton 352 

County  Commissioners  v.  Sears 42 

County  Commissioners,  Tracing  v 302 

County  Commissioners  v.  County  Commissioners 137 

Collins  v.  Davis 25 

Collins,  Rogers  v  ....•••• 42 

Crout,  Freeman  v 364 

Davis  et  al.,  Collins  v 25 

Davis  et  al.,  Lo\vry  v L'5 

Dayton  v.  Bank 263 

Dayton.  B;ink  v 330 

Dear  v.  Tracy ;j'J3 

5 


6  CASES  REPORTED. 

PAGE 

Dolan  v.  Church 187 

Donuellan  v.  Nichols 61 

Dunn  v.  Hereford 206 

Emery  v.  Hawley 305 

Free,  Wolcott  v 255 

Fein  v.  Territory 380 

Fein  v.  United  States 246 

Fields  v.  Territory 78 

First  National  Bank,  Wilson  v 108 

Freeman  v.  Grout 364 

• 

Geer  v.  Murrin 37 

Glafcke  v.  O'Brien 317 

Great  Western  Insurance  Co.  v.  Pierce 45 

Gregory  v.  Morris 213 

Haase  et  al.,  Launier  et  al.  v < 25 

Hamilton  v.  Territory 131 

Hance,  Ivinson  v 270 

Harris,  Wagner  v 194 

Hause,  The  U.  P.  R.  R.  v 27 

Hawley,  Emery  v 30:> 

Heenan,  Brennan  v 121 

Hellman  v.  Wright 190 

Billiard  F.  &  L.  Co.,  Mosher  v 359 

Billiard  F.  &  I,.  Co.  v.  Woods 400 

Hinton,  County  Commissioners  v 358 

Horton  v.  Peacock 57 

Horton  et  al.  v.  Peacock 39 

Button,  Alsop  v 284 

Hutton,  Ivinson   v 178 

Ingersoll.   Bath  v 280 

Ivinson  v.  Althrop 71 

Iviuson  v.  Alsop 251 

Ivinson  v.  Hance 270 

Ivinson  v.  Hutton 178 

Ivinson  v.  Pease 277 

Ivinson  v.  Territory 4 

Jenkins  v.  City  of  Cheyenne 280 

Jenkins  v.  Territory 318 

Johnson  v.  Marion 21 

Jones,  Reagan  v 210 

Jubb  vs.  Thorpe 359 


CASES  REPORTED.  7 

PAGE 
Kinsler  v.  Territory 112 

Larmier  v.  Haase  et  al 25 

Laramie  Co.  v.  Albany  Harbor  Co 137 

Lee  v.  Cook  &  Corey 417 

Limlenmyer,  Bath  v 240 

Lowry  et  al.,  Rogers  v : 41 

Lowry  et  al.  v.  Davis  et  al 25 

McCarteney  v.  Bank 386 

McCarthy  v.  Territory 313 

McDonald,  North  v 351 

McGlinchey  v.  Morrison 105 

Marion,  Johnson  v 21 

Martin  et  al.  v.  Moore 22 

Martin  v.  The  U.  P.  K.  K.  Co 143 

Monseau,  Western  Union  Telegraph  Co.  v 17 

Morris,  Gregory  v 213 

Morrison,  McGlinchey  v 105 

Moore,  Martin  et  al.  v 22 

Mosher  v.  Milliard  F.  &  L.  Co 359 

Murrin  v.  Ullmau 36 

Myers,  Bryne  v 355 

Nagle  v.  Rntledge 361 

Nash,  Brown  v 85 

Nicholls,   Donnellau  v 61 

North  v.  McDonald 351 

O'Brien,  Glafcke  v 317 

O'  Brieu,  Wilson  v 42 

Peacock,  Horton  v 57 

Peacock,  Horton  &  Reel  v 59 

Pease  v.  Territory 39(5 

Pease,  Ivinson  v 277 

Phillips  v.   Territory 82 

Pierce,  Territory  v 168 

Price,  Bonnifield  v 172 

Price,  Bonnifield .   v 223 

Regan   v.  Jones 210 

Hitter  v.  Territory   320 

Rogers  v.  Collins 42 

Rogers  v.  Lowry  &   Upton 41 

Rogers,  Wilson  v :>l 

Ruinsey  v.  Walcott 259 

Rntledge,  Nagle  v 301 


8  CASES  REPORTED. 

PAGE 

Scott  v.  United  States .' 40 

Sears  v.  County  Commissioners , 42 

Stephens,  Wild  v 370 

Territory  v.  Anderson 20 

Territory  v.  Fields 78 

Territory,  Fein  v 380 

Territory  v.  Hamilton 131 

Territory,  Ivinsou  v 41 

Territory  v.  Jenkins 318 

Territory,  Kinsler  v 112 

Territory,  Phillips  v 82 

Territory,  Pierce  v 168 

Territory  v.  Hitter 320 

Territory,  Waldschmidt ; 149 

Territory,  Wilson  v 78 

Territory,  Wilson  v 114 

Territory,  Walcott  v 67 

The  U.  P.  R.  R.  Co.  v.  Can- 96 

The  U.  P.  R.  R.  Co.  v.  Hause 27 

The  U.  P.  R.  R.   Co.  v.  Martin 143 

The  U.  P.  R.  R.  Co.  v.  Wilson 309 

The  Western  Union  Telegraph  Co.  v.  Mouseau 17 

Thorpe,  Jubb  v 359 

Trabiug  v.  County  Commissioners 301 

Ullman,  Murrin  v 36 

United   States,  Fein  v 246 

United  States,  Scott  v 40 

Wagner  et  al.  v.  Harris 194 

Waldschmidt  v.  Territory 149 

White  v.  Sisson,  Wallace  &  Co 399 

Wild  v.  Stephens 370 

Wilson  v.  First  National  Bank 108 

Wilson  v.  O'Brien 42 

Wilson  v.  Rogers 51 

Wilson  v.  Territory 114 

Wilson  v.  Territory 155 

Wilson  v.  The  U.  P.  R.  R.  Co 309 

Wolcott  v.  Fee 255 

Wolcott  v.  Rumsey 259 

Wolcott  v.  Territory 67 

Wright,  Hellman  v 190 


CASES   CITED. 


PAGE 

A.  &  G.  R.  R.  Co.  v.  Collins. .  32 

Adams,  Pattison  v 400 

Adams,    Sheldon  v 175 

Adriance  v.  Rooine 18 

Ah  Soy,  People  v 84 

Allen,  Mitchell  v 190 

Allen  v.  Patterson 309 

Allen,  People  v 313 

Allen,  State  v 259 

Almy  v.   Wilber 370 

American  Ins.  Co.  v.  Carter..  198 

Anderson  v.  Dunn 88 

Anthony  v.  Stimpson 393 

A.  R.  R.  Co.  v.   Clapp 32 

Aurora  City  v.  West 227 

Austin  et  al.  v.  Carpenter....  180 

Bachman  v.  Sepulveda 371 

Baker,  Oliphnnt  v 401 

Baker  v.  Rand 241 

Baltes  v.   Hamlin 265 

B.  &  N.  F.  R.  R.  Co.  v.  City  of 

Buffalo 88 

Bank  v.   Dayton 306 

Bank  of   Washington  v.   Trip- 

lett 309 

Bunk  v.  Gultslick 370 

Bank,   Cherry  v 355 

Barr  v.   Hatch 370 

Barrett,  King  v 265 

Barton,  Conklin  v 196 

Bayard  v.  Passinore 119 

Belcher  v.  Laig 355 

Bell  v.   Hollowell 256 

Bell.  Talmage  v 386 

Beruer,   Mackner  v 252 

Benedict,  Dunham    v 252 

Bidwell,   llobben  v 345 

Blakely  v.   Shetton 304 

Bhuleu,   United  States  v 16!) 

Blake,   State  v 260 

Bond  v.  Mitchell 400 

Bond,  State  v 252 

Bo  wen  v.   Crary 2:10 

Bradley,   Evans   v 332 

Brhtain,    Latlirop  v 3:'>:1 

Brons.m's    Case 119 

Brown,  Milligau  v 303 

Brown,  Gill  v 23tj 


Brown,  Irwin  v 417 

Brown,  McCurdy  v 400 

Brown,  Nash  v 103 

Bull  v.  Hopkins 241 

Bull,   Kyving  v 300 

Burdett,   Rex  v 168 

Burns  v.  People 168 

Burton,  Sturges  v 175 

i  Butler  v.  Hormitz 216 

Butler,   Phelps  v 371 

Campbell,  Whitemarsh  v 178 

Carpenter,  Austin  &  Spicerv.  180 

Carpenter  v.  Logan 371 

Carpenter  v.  Smith 30 

Carter,  Am.  Ins.  Co.  v 198 

Castle  v.  Myers 227 

Cern  v.  Gibbs 313 

Chappell  v.  The  State 313 

Chestnut,   Marsh  v 417 

Cherry  v.  Bank 355 

Childs  v.  Home 180 

Childs  et  al.  v.  Jones .216 

Chitton,  Pickett   v 'l80 

Churchill,   Ide  v 252 

City,  Goodrich  v 227 

City  of  Buffalo,  B.  &  X.  F.  R. 

R.  Co.  v 88 

City  of  Burlington,  Stockton  v.  252 

Clapp  v.  A.  R.  R.  Co 32 

Clark  v.  Irwin 256 

Clark,    Vaukirk  v 296 

Clark  v.  Potter  County 324 

Clark  v.   Skinner 400 

Clarksou,  Scott  v 180 

Cleamatos  v.   Meredith 227 

Cleveland  ('.  R.  R.  Co.  v.  Terry.  301 

Clinton  v.  Euglebrecht 133 

Cody,  Watson  v 179 

Colemau  v.   Playsted 128 

Collins,  Fat  v 30 

Collins  v.  A.  &  G.  R.  R.  Co. .  .     32 

Commonwealth  v.  Bank 93 

Commonwealth  v.  McPike  ....     84 

Comptou    v.   People 326 

Conklin    v.    Barton 190 

Conners   v.   Conners 179 

Cook  v.    Graham 323 

i  Cook  v.  U.  S 132 

9 


10 


CASES  CITED. 


PAGE 

Cartwright  v.  Staggers 252 

Cowan  v.  Ladd 159 

Orary,  Boweu  v 230 

Cropper  v.  United  States 133 

Crowell  v.  Wes.   Res.  Bank...  159 

Cutler  v.  Powell 128 

David,  Stockwell   v 180 

Davis  v.  Hardy 30 

Davis,  Reed  v 30 

Davis,   Thornton  v 118 

Dayton,  Bank  v 306 

Debard  v.   People 93 

De  Meyer  v.  Sawyer 159 

Dempsey,  Laycroft  v 179 

Dennison  v.  Dennison 299 

Dickenson  v.  Tillinghast 370 

Doane  v.  Eddy 160 

Dodge,  United  States  v 118 

Doe  v.  Oliver 241 

Dolfut  v.  French 190 

Douglas  v.  Houston 370 

Dred  Scott  Case 198 

Duane,  Hollingsworth  v 119 

Duchess  of  Kingston's  Case. ..  241 

Dunham  v.   Benedict 252 

Dunham  v.  State  of  Iowa 120 

Dunn,  Anderson  v 88 

Dunphy   v.  Kleinsmith 119 

Eaton  v.  Whitney 371 

Eddy,  Doane  v 1<>0 

Eddy  v.  Wilson 30 

Edwards  v.   Harben 346 

Edwards  v.  People 333 

Elliott,  Hause  v 345 

Elliott,  Peel  v - 190 

Ells  &  Morton  v.  Ohio  Life  Ins. 

&  Trust  Co 284 

Elwell,   Phillips  v 345 

Ely  v.  McGuire 371 

Ely,  Russell  v 252 

Englebrecht,  Clinton  v 133 

Evans  v.  Bradley 332 

Evans  v.  Strode 357 

Evert  v.  State 252 

Ewing  v.   Hollister 117 

Eyster  v.  Goff 371 


Farnham,  Putney  v 

Farrar  v.   Brown 

Farrar  &  Brown  v.  U.   S 

Farrell  v.  Humphrey 

Fat  v.  Collins 

Fea,  People  v 

Ferris  v.  Thigley 

Ferry,   Philadelphia  v 

Findley,  State  v 

First  Pres.  Ch.,  Williams  v.  . 


380 
329 
324 
341 
30 
118 
330 
417 
324 
175 


PAGE 

Fisher,  Krane  v 241 

Fitch,  Graff  v 401 

Fleming  v.  McDougall 253 

Forel  v.  Laugee 372 

Fort  v.  Gooding 128 

Fortner,  Spurrs  v 252 

Fowler  v.  Sealy 386 

Francis  v.  Millard 301 

Freer,  People  v 119 

French,  Dolfus  v 190 

French,  Pain  v 371 

French  v.  Fuller 109 

Fuller,  French  v 109 

Fuller  v.  Rublee 252 

Garcia  v.  Sheldon 309 

Gardner  v.  People 313 

Gearhart  v.  Dixon 271 

Gibbs,  Cern  v 313 

Gibson  v.  State 88 

Gill  v.  Brown 256 

Goldsby  v.  State 132 

Goodling,  Fort  v 128 

Goodrich  v.  The  City 327 

Governor  v.   Redgway 326 

Graff  v.  Fitch 401 

Graham,   Cook  v 318 

Grant  Falls  Mfg.  Co.,  Martin  v.  18 

Gray,   Spinney  v 332 

Gregory  v.  Wright 309 

Green  v.  State 313 

Gultslick,  Bank  v 370 

Haight,   Harpending  v 93 

Hale,   Harding  v 241 

Hall,  Pratt  v 159 

Halleck,  Jackman  v 370 

Hambice  v.  Vanh  liter 3-45 

Hamilton  v.  Russell 342 

Hamlin,   Battes  v 2C5 

Hammond  v.    Inghbright 300 

Hammond  v.  Mich.  St.   Bank.  18 

Harben,  Edwards  v 346 

Harding  v.  Hale 241 

Hardy,   Davis  v 30 

Harring  v.  N.  Y.  &  E.   R.  R. .  .  30 

Harm,    Harris   v 227 

Harpending  v.  Haight 93 

Harrington,   Hitchcock  v 371 

Harris  v.   Harm 227 

Hartfield  v.   Roner 70 

Harwood,  Mayor,  etc.  v 88 

Hatch,  Barr  v 370 

Hayden    v.    Middlesex    Turn- 
pike   Co. 18 

Hays  v.   Reen 227 

Heath.  Teter  v 54 

Herne  v.  Xew  Eng.  Ins.  Co. .  .  170 

Herring  v.   State..                     .  313 


CASES  CITED. 


11 


PAGE 

Heth,  United  States  v 418 

Hitchcock  v.  Harrison 368 

Hobben  v.  Bidwell 345 

Hollingsworth  v.  Duane 119 

Hollister,  Ewing  v 117 

Hollo  well,  Bell  v 256 

Hopkins,  Bull  v 241 

Horton  v.  Peacock 252 

Hormitz,  Butler  v 216 

House  v.  Elliott 342 

Houston,  Douglas  v 370 

Home,  Childs  v 180 

Hudson,  United  States  v 120 

Hudson  River  R.  R.  Co.,  Shel- 
don v 30 

Hulburt,  Le  Roy  v 327 

Hull,   Pratt  v 32 

Humbert  v.  Trinity  Ch 175 

Humphrey,  Farrell  v 341 

Hunt  v.  Van  Alstyne 88 

Hunter,  Gruzly  v 355 

Ide  v.  Churchill 252 

Indiana,     Vincennes     Univer- 
sity v 200 

Inghbright  v.  Hammond 300 

Irwiu  v.  Brown 417 

Irwin,  Clark  v 259 

Jackman  v.  Halleck 370 

Jackson  v.  Willard 371 

Jacobs,  Spangler  v 93 

Jennings,  Ohio  v 260 

Johnson  v.  Wallace 311 

Jones  v.  Chields  et  al 216 

Jordan  v.  Reed 30 


Kane  v.  Fisher 241 

King  v.  Barrett 245 

Kleinsmith,   Dunphy  v 119 

Koplin,  Labar  v 159 

Kuhland  v.  Sedgwick 344 

Ky ving  v.  Bull 300 

Labar  v.  Koplin 32 

Ladd,  Cowen  v 159 

Lan^ee,  Forel  v 372 

Lathrop  v.  Brittain 333 

Lay  croft  v.  Dempsey 179 

Leet,  People  v 326 

Leflingwell  v.   Warren 175 

Lewis  v.  Lewis ....'. 414 

Loyncr  v.  State 132 

Logan,  Carpenter  v 371 

Longworth   v.  Taylor 374 

Lord  v.  Morris :;70 

Love,  People  v 3:13 


PAGE 

Mackner  v.  Benner 252 

McAtee,  Mann  v 230 

McCarteney,    Midland    Pacific 

R.  R.  Co.  v 30 

McCurdy  v.  Brown 400 

McCurrie,  Reynolds  v 392 

McDougall  v.  Fleming 253 

McGill,  United  States  v 169 

McGrew,  Reed  v 355 

McGuire,  Ely  v 371 

McGurney,  Southgate  v 227 

McKelligan  v.  Wright 175 

McLaughlin  v.  Nicholls 174 

McMartin  v.  Taylor 160 

McPike,  Commonwealth  v. .  . .     84 

Mahoney,  People  v 93 

Mann  v.  McAtee 230 

Mann,  Thayer  v 370 

Marsh,  Chesnut  v 417 

Martin  v.  Giant  Falls  Manuf. 

Co 18 

Mason  v.  Cronise 175 

Mason,  Nicholls  v 227 

Mayor,  etc.,  v.  Harwood 88 

Medary,  State  v 332 

Merredith,  Cleamates  v 227 

Mich.  St.  Bank,  Hammond  v..     30 
Midland  Pacific  R.  R.  Co.  Y.  Mc- 
Carteney      30 

Middlesex  Turnpike  Co.,  Hay- 
den  v .*. . .     18 

Millard,  Frances  v 301 

Miller  v.  State 93 

Milligan  v.  Brown 303 

Mitchell  v.  Allen 190 

Mitchell,  Bond  v 400 

Morris,  Lord  v 370 

Morrison  v.  N.  Y.  &  N.  H.  R. 

R.  Co 30 

Mott,  Price  v 417 

Murray  v.  Gibson 418 

Myers,  Castle  v 227 

Myers   v.   Parker 332 

Nancy  v.  Sackett 300 

Xasli  v.  Brown 103 

Nash  v.  State 169 

Necker,  Nat.  Bk.,  Hagerstown 

v 386 

New  Eng.  Mut.  Ins.  Co.,  Herne 

v 179 

Nicholls,  McLaughlin  v 174 

Nicholls  v.  Mason 2l?7 

N.  Y.  &  Erie,  Hai  ing  v 30 

N.  Y.  &  N.  H.  R.  R.  Co.,  Morri- 
son v 30 


Oaksv.  Wyatt 344 

Ohio  v.  Jennings 260 


CASES  CITED. 


PAGE 

Ohio  L.  Ins.  &  T.  Co.,  Ells  et 

al.  v 294 

Oliphant  v.  Baker 401 

Oswald,  Republica  v 119 

Pain  v.  French 371 

Parker,  Myers  v 332 

Passmore,  Bayard  v 119 

Pattison  v.  Adams 400 

Patterson  v.  United  States 256 

Peacock  v.  Horton 252 

Peel  v.  Elliott 190 

Pendleton  St.  R.  R.  Co.  v.'Stat- 

man 361 

People  v.  Ah  Say 84 

People  v.  Allen 313 

People  v.  Anderson 330 

People  v.  Burns 168 

People  v.  Compton 326 

People  v.  Debard 93 

People  v.  Edwards 333 

People  ex  rel.  Le  Roy  v.  Hul- 

burt 327 

People  v.  Fea 119 

People  v.  Freer 119 

People  v.  Leet 326 

People  v.  Love 333 

People  v.  Mahoney 93 

People  v.  Moody 380 

People  v.  Ross 333 

People  v.  Safford 113 

People  v.  Warner 327 

Phillips  V.  Elwell 345 

Phelps  v.  Butler 371 

Pickens,  Pierce  v 361 

Picket  v.  Chilton 180 

Pico,  Sparks  v 370 

Pierce  v.  Pickens 561 

Pierce  v.  West 180 

Pierson  v.  Wilson 180 

Pitman's  Case 118 

Playsted,  Coleman  v 128 

Potter  County,  Clark  v 324 

Powell,  Cutter  v 120 

Powell  v.  Tuttle 190 

Pratt  v.  Hall :  159 

Pratt  v.  Hull 84 

Price  v.  Mott 417 

Putney  v.  Farnlmm 386 

Rand,  Baker  v 241 

Reed  v.  Davis ". 30 

Reed,  Jordan  v 30 

Reed   v.  McGre w 355 

Rcen.  Hayes  v 227 

Republica  v.  Oswald 119 

Rex  v.  Burdett 168 

Reynolds  v.  McCornie 355 

Roads  v.  Symmes 370 


PAGE 

Rice  v.  State 132 

Rich  v.  Rich 203 

Redgway,  Governor  v 326 

Riley  v.  State 168 

Rogers  V.  Mitchell 182 

Rogers  v.  Rogers 178 

Rogers,  Wilson  v 109 

Roner,  Hatfield  v 30 

RoOme,  Adriance  v . . .  I 18 

Roplin,  Labar  v 32 

Ruggles  v.  Patten 304 

Sackett,  Tracy  v 355 

Sackett,  ?Jancy  v • 300 

Sealy,  Fowler  v : 382 

Saft'ord  v.  People 113 

Sclauble  v.  Sheriff 296 

Scott  v.  Clarkson 183 

Sergeant  v.  State 306 

Sepulveda,  Bachman  v 371 

Slieldon  v.  Adams 175 

Sheldon,  Garcia  v 309 

Sheldon  v.  Hudson  R.  R.  R.  Co.  30 

Shetton,   Blackley  v 307 

Sheriff,  Sclauble  v 296 

Simpson,  Stuart  v 159 

'Skinner  v.  Clark 400 

Smith,  Carpenter  v 30 

Smith  v.  Poor 109 

Sohn  v.  Waterson 418 

Sotithgate  v.  McGurney 227 

Southmark    B'k   v.    Common- 
wealth   93 

Souzer,  De  Meyer  v 159 

Spangler  v.  Jacobs 93 

Sparks  v.  Pico 367 

Spinney  v.  Gray 332 

Spooner  v.  Brooklin  R.  R.  Co.  30 

Spurs  v.  Fortner 353 

Squires  v.  Village  of  Neenah. .  380 

Staggers,  Cartwright  v 252 

Statman,  Pendleton  St.  R.  R. 

Co.  v 361 

State  v.  Allen 359 

State  v.  Blake 260 

State  v.  Barnard 252 

State  v.  Dunham 120 

State  v.  Enslow 376 

State,  Evert  v 252 

State  v.  Findley 324 

State  v.  Forhsythe 300 

State  v.  Galdshy 132 

State  v.  Gibson". 88 

State  v.  Hussey 313 

State  v.  Syner 132 

State  v.  Medary 332 

State   v.  Miller 93 

State,  Nash  v 169 

State,  Rice  v 132 


CASES  CITED. 


13 


State,  Riley  v 168 

State,  Van  Valkenburg  v 313 

State  v.  Wilson  et  al 119 

Stimpson,   Authony  v 393 

St.  John  v.  Van  Santvoord . . .  143 

Stockton  v.  City  of  Burlington.  252 

Stuart  v.  Simpson 159,  203 

Sturges  v.  Burton 175 

Supervisors  v.  Van  Campen..  324 

Talmage  v.  Bell 386 

Taylor  v.  McMartin 160 

Taylor,  Longworth  v 370 

Taylor,  Wilter  v 132 

Terry  v.  Cleveland  R.  R.  Co..  301 

Terry  v.  Wheeler 401 

Teter  v.  Heath 54 

Thigley,  Ferris  v 330 

Thayer  v.  Mann 370 

Thornton  v.  Davis 118 

Tibbies  v.  State 313 

Tillinghastv.  Dickenson 370 

Tracy  v.  Sackett 355 

Treblecock  v.  Wilson 216 

Trinity  Church  v.  Humbert...  375 

Tuttle,  Powell  v 190 

United  States  v.  Bladin 169 

United  States  v.  Cook 132 

United  States  v.  Cropper 133 

United  States  v.  Dodge 118 

United  States  v.  Farrar  et  al. .  324 

United  States  v.  Heth 418 

United  States  v.  Hudson 120 

United  States  v.  McGill 169 


PAGE 

United  States  v.  Patterson 256 

United  States  v.  Walton 413 

Van  Alstyne,  Hunt  v 388 

Van  Campen,  Supervisors  v. . .  320 

Vanhuter,  Hambice  v 345 

Vankirk  v.  Clark 296 

Van  Santvoord  v.  St.  John 143 

Van  Valkenburg  v.  State 313 

Vincennes    University   v.    In- 
diana   200 

Wallace,  Johnson  v 311 

Wai  ton  v.  United  States 417 

Warner  v.  People 327 

Warren,  Leffingwell  v 375 

Waterson,  Sohn  v 418 

West,  Aurora  City  v 227 

West,  Pierce  v 180 

West,  Williams  v ' 265 

West.  Res.  Bk.,Crowellv 159 

Wheeler,  Terry  v 401 

Whitney,  Eaton  v 371 

Willard,  Almy  v 367 

Willard,  Jackson  v 371 

Williams  v.  First  Pres.  Ch 175 

Williams,  Wilson  v 159 

Wilson,  Eddy  v 30 

Wilson,  McPherson  v 180 

Wilson  v.  Rogers 109 

Wilson  et  al.,  State  v 120 

Wilson,  Treblecock  v 216 

Wright  v.  McKelligan 175 

Wrockledge  v.  State 313 


MAY  TERM,  1870. 


BEPOBTS  OF  OASES 


THE   SUPREME   COURT 

OF 

WYOMING  TEREITOEY. 
MAY  TERM,  1870. 


THE   WESTERN   UNION   TELEGRAPH   COMPANY 
v.     MONSEAU. 

EVIDENCE — VERDICT. — If  there  is  evidence  before  a  jury  tending  to 
prove  the  material  allegations  of  the  complaint,  and  sufficient 
facts  to  establish  the  cause  of  action,  the  verdict  should  be  sus- 
tained, unless  it  appears  to  the  appellate  court  that  the  jury  has 
either  misunderstood  the  evidence  or  that  the  jurors  have  been  in- 
fluenced by  bias  or  prejudice.  Where  there  is  no  evidence,  how- 
ever, to  sustain  the  verdict,  or  where  it  has  been  found  directly 
contrary  to  the  evidence,  it  should  be  set  aside  and  a  new  trial 
granted. 

ERROR  to  the  District  Court  for  Laramie  County. 

This  action  was  brought  by  Monseau,  defendant  in  error, 
to  recover  of  the  Western  Union  Telegraph  Company  the 
sum  of  one  thousand  six  hundred  and  ninety-six  dollars  and 
fifty  cents  and  interest,  for  seven  hundred  and  fifty-four  tel- 
egraph poles  alleged  to  have  been  sold  and  delivered  to  said 
company,  at  its  request,  for  the  price  of  two  dollars  and 
fifty  cents  for  each  pole.  The  answer  contained  a  general 
denial,  and  the  cause  came  on  for  trial  before  Chief  Justice 
Howe  and  a  jury. 

2  17 


18          WESTERN  UNION  TEL.  Co.  v.  MONSEATJ.  [Sup.  Ct. 

Argument  for  Defendant. 

The  evidence  introduced  by  the  plaintiff  directly  tended 
to  prove  the  allegation  of  the  complaint,  and  that  the  tele- 
graph poles  mentioned  therein  were  furnished  by  Monseau 
to  said  company  in  accordance  with  the  terms  of  a  contract 
made  by  one  Martin  Hogan,  its  authorized  agent.  The  tes- 
timony on  the  part  of  the  defense,  while  it,  to  a  certain  ex- 
tent, corroborated  the  evidence  of  the  plaintiff  as  to  the 
delivery  of  the  poles  in  question,  tended  to  prove  that  Ho- 
gan was  not  authorized  to  make  such  contract  on  behalf  of 
said  telegraph  company,  and  that  he  did  not  make  such  con- 
tract. Numerous  exceptions  were  taken  during  the  trial, 
but  the  principal  one  was  to  the  overruling  of  the  defend- 
ant's motion  to  set  aside  the  verdict  and  for  a  new  trial.  In 
that  motion  but  two  errors  were  assigned,  of  which  the 
second  only  was  considered  by  the  court,  viz.,  "Because 
the  evidence  in  the  case  was  insufficient  to  sustain  the  ver- 
dict." A  verdict  was  rendered  for  the  plaintiff  for  one  thou- 
sand nine  hundred  and  eighty-three  dollars  and  forty-eight 
cents,  and  judgment  ordered  thereon,  and  the  case  was  taken 
by  writ  of  error  to  the  supreme  court. 

D.  McLanghlin,  for  plaintiff  in  error,  contended  : 

I.-  That  there  was  not  sufficient  evidence  to  establish  the 
fact  that  Hogan  was  the  duly  authorized  agent  of  the  com- 
pany. 

II.  That  the  evidence  was  insufficient  to  prove  that 
any  contract  was  made  between  Hogan  and  the  defendant 
in  error,  and  cited:  Angell  and  Ames  on  Corp.  286,  289; 
Hayden  v.  Middlesex  Turnpike  Cor.,  10  Mass.  403;  Martin  v. 
Grant  Falls  Manuf.Co.,  9  N.  H.  51 ;  Paley's  Agency,  192,  202, 
203,204,205:  Adriance  v.  Roome,  52  Barb.  399;  Paley's 
Agency,  178,  179,  201:  2  Kent,  620  et  seq. ;  Hammond  v. 
Mich.  State  Bank,  Walk.  Ch.  R.  214;  Story  on  Agency,  166, 
170,  172;  Smith's  Mercantile  Law,  2d  ed/29. 

E.  P.  Johnson,  for  defendant  in   error,  urged  that    there 
was  sufficient  evidence  adduced  by  the  plaintiff  in  the  court 
below   to  sustain   all  the   material   allegations    contained    in 


May,  1870.J  WESTERN  UNION  TEL.  Co.  v.  MONSEAU.      19 

Opinion  of  the  Court — Kingman,  J. 

his  complaint,  and  cited :  Nash's  Pr.,  New  Trials  ;  18  U.  S. 
Digest,  New  Trials  ;  Story  on  Agency,  sees.  52,  53,  54,  55, 
56;  Angell  and  Ames,  298;  Story  on  Agency,  sees.  73,  126, 
127,  443 ;  Redfield  on  Railways,  510. 

By  the  Court,  KINGMAN,  J.  This  case  came  up  on  error 
.from  the  first  judicial  district.  The  exception  taken  in  the 
court  below  was  to  the  ruling  of  the  judge  refusing  to  set 
aside  the  verdict,  on  the  ground  that  there  was  not  sufficient 
evidence  to  sustain  a  verdict  for  the  plaintiff. 

The  law  as  given  to  the  jury  is  not  objected  to  by  counsel 
for  the  defendant,  and  this  court  does  not  differ  with  coun- 
sel as  to  the  law  as  now  contended  for  by  him.  The  only 
question  here  is,  did  the  jury  find  their  verdict  without  evi- 
dence, or  against  the  evidence,  so  that  it  cannot  be  sustained. 

The  rule  of  law  in  this  case  is  well  settled.  If  there  is 
reason  to  suppose  that  the  jury  have  mistaken  or  misunder- 
stood the  evidence,  or  that  they  have  been  carried  away  by 
passion  or  prejudice,  and  thereby  have  done  evident  injus- 
tice to  either  party,  it  is  the  duty  of  the  court  to  set  aside 
their  verdict  and  grant  a  new  trial.  But  if  there  is  evidence 
proper  to  be  submitted  to  a  jury  on  the  issue  before  them,  it 
is  their  province  to  weigh  it;  and  it  must  be  a  very  clear 
case,  appealing  very  strongly  to  the  conscience  of  the  court, 
to  induce  or  permit  us  to  interfere  with  their  decision.  It 
is  not  sufficient  that  another  jury  might  probably  arrive  at 
a  different  conclusion,  nor  that  the  court  should  be  entirely 
satisfied  with  the  verdict;  if  there  is  evidence  proper  for 
them  to  consider  and  tending  to  prove  the  issue  presented, 
we  must  be  satisfied  with  their  judgment,  unless  it  is  made 
to  appear  that  their  judgment  has  been  unfairly  exercised. 

In  the  case  before  us,  there  is  material  and  pertinent  evi- 
dence tending  to  prove  the  issue  on  the  part  of  the  plaintiff. 
This  is  met  and  contradicted  by  evidence  on  the  part  of  the 
defendant ;  but  we  cannot  say  that  it  is  fully  overcome,  or 
that  injustice  has  been  done  by  the  verdict. 

The  ruling  of  the  court  below  is  sustained,  the  motion  for 
a  new  trial  overruled,  and  the  judgment  affirmed. 


20          TERRITORY  OF  WYOMING  v.  ANDERSON.  [Sup.  Ct. 


Statement  of  Facts. 


THE  TERRITORY  OF  WYOMING  v.  ANDERSON. 

PRACTICE — CRIMINAL  CASES. — A  statute  requiring  that  in  cases  of  mis- 
demeanor the  name  of  the  prosecuting,  or  other  witness,  shall  be 
indorsed  on  the  indictment,  is  merely  directory,  and  not  mandatory. 

PERMISSION  TO  INDORSE. — Where  the  prosecuting  attorney  or  foreman 
of  the  grand  jury  has  failed  to  make  such  indorsement,  permission 
will  be  given  on  trial  to  the  prosecuting  attorney  to  make  such  in- 
dorsement. 

APPEAL  from  the  First  District  Court  for  Laramie  County. 

The  appellant  was  indicted  at  the  September  term,  1869, 
of  the  first  district  court,  for  keeping  a  disorderly  house. 
The  cause  was  tried  before  Chief  Justice  Howe  and  a  jury. 
Upon  the  trial,  when  the  witnesses  were  called  on  behalf 
of  the  prosecution,  counsel  for  the  defense  objected  to  the 
testimony  and  evidence  of  the  said  witnesses,  because  their 
names  were  not  indorsed  upon  the  indictment  as  required 
by  the  statutes  then  in  force.  Whereupon  the  prosecutor 
asked  leave  of  the  court  to  indorse  the  names  of  said  per- 
sons on  the  indictment  as  witnesses,  which  permission  was 
granted,  and  the  witnesses  were  examined  over  the  objec- 
tion of  counsel  for  defense  ;  other  exceptions  were  taken  not 
material  to  the  decision  of  the  case. 

A  verdict  of  guilty  was  rendered,  and  after  a  motion  for 
a  new  trial  had  been  made  and  overruled,  the  defendant 
was  fined  three  hundred  dollars  and  costs,  and  the  defend- 
ant appealed  to  the  supreme  court. 

J.  M.  Carey,  for  appellee. 

Miller  $  Street,  for  appellant. 

Judgment  affirmed,  and  writ  of  procedendo  awarded. 


May,  1870.]  JOHNSON  v.  MARION. 


Statetnent  of  Facts. 


JOHNSON  v.  MARION. 

APPEAL— JUSTICES'  COURT. — Upon  an  appeal  taken  from  the  court  of  a 
justice  of  the  peace  to  the  district  court,  if  it  appears  that  the  bond 
filed  is  not  in  accordance  with  the  requirements  of  the  statute  in  such 
case  made  and  provided,  the  appeal  may  be  dismissed  on  motion, 
and  judgment  entered  for  the  amount  received  in  the  court  below. 

MOTION. — Such  motion  may  be  made,  although  a  notice  of  trial  in  the 
appellate  court  has  been  served  by  the  party  making  the  motion. 

APPEAL  from  the  Third  District  Court,  for  Carter  County. 

This  cause  was  tiled  in  justice's  court  before  J.  W.  Still- 
man,  J.  P.,  and  judgment  was  entered  for  the  plaintiff  for 
seventy-five  dollars  and  costs,  whereupon  the  defendant, 
Joseph  Marion,  appealed,  under  the  statute,  to  the  district 
court.  On  the  eleventh  of  September,  1869,  the  cause  was 
noticed  by  the  attorney  for  the  appellee  in  the  district  court. 
The  notice  of  trial  was  as  follows : 

"  Territory  of  Wyoming,  County  of  Carter,  ss :  In  the 
District  Court,  Third  Judicial  District.  W.  H.  Johnson  r. 
Joseph  Marion.  Notice  of  trial.  To  Joseph  Marion :  Take 
notice  that  the  above  entitled  cause  will  be  tried  at  the  next 
term  of  the  district  court,  to  be  held  at  the  court-house  in 
South  Pass  city,  on  the  twenty-second  day  of  September, 
1869.  M.  C.  Page,  attorney  for  plaintiff." 

On  the  fifth  day  of  October,  1809,  counsel  for  said  ap- 
pellee made  a  motion  in  said  court,  Hon.  J.  W.  Kingman, 
associate  justice  of  the  supreme  court,  presiding,  to  dismiss 
the  appeal,  on  the  ground  that  the  bond  was  not  in  com- 
pliance with  the  statute,  and  that  said  appeal  had  not  been 
properly  perfected.  The  following  is  a  copy  of  the  notice 
of  motion  : 

"Territory  of  Wyoming,  County  of  Carter,  ss :  In  the 
District  Court,  Third  Judicial  District.  W.  II.  Johnson, 
plaintiff,  v.  Joseph  Marion,  defendant.  The  above-named 
defendant  take  notice  that  on  the  eighth  day  of  October, 
1869,  I  will  move  in  open  court  to  dismiss  the  appeal 


22  MAKTtN  v.  MOOKE.  [Sup.  Ct. 


Points  decided. 


granted  in  the  above  entitled  cause,  on  the  ground  that 
said  appeal  has  not  been  properly  taken  and  perfected  ac- 
cording to  law.  W.  H.  Johnson,  by  M.  C.  Page,  his 
attorney." 

Thereupon,  said  motion  was  granted,  the  appeal  was  dis- 
missed, and  judgment  entered  for  seventy-five  dollars,  and 
costs  of  appeal,  against  the  defendant,  appellant,  and  over 
the  objection  of  his  counsel.  The  cause  was  then  taken  by 
the  appellant  to  the  supreme  court  on  appeal. 

E.  D.  Strunk,  counsel  for  plaintiff,  claimed : 

I.  That  the  service  of  the  notice  of  trial  was  an  appear- 
ance in  the  cause,  and  waived  all  defects  in  the  bond,  and 
that  the  cause  was  properly  in  the   appellate  court  to  be 
heard  de  novo. 

II.  That  on  the  motion  to  dismiss,  it  was  error  to  order 
judgment  to  be  entered  in  the  district  court. 

J.  M.  Casey  and  M,  G.  Page,  for  the  appellee. 
Judgment  of  the  district  court  affirmed. 


MARTIN  &  NUCHOLLS  v.  MOORE. 

FOREIGN  JUDGMENTS — PLEADING. — In  an  action  upon  a  foreign  judg- 
ment, an  allegation  in  the  complaint  is  sufficient  if  it  states  the  name 
of  the  court  in  which  such  judgment  was  obtained,  and  that  the 
same  was  a  court  of  competent  jurisdiction,  without  alleging  the 
actions  and  proceedings  thereof. 

DEMURRER — PRACTICE. — Where,  the  defendant's  demurrer  has  been 
overruled,  a  reasonable  time  will  be  given  him  to  answer,  unless  it 
appear  that  such  demurrer  was  interposed  in  bad  faith;  but  such 
time  to  answer  will  not  be  extended,  except  for  causes  over  which 
the  defendant  could  have  had  no  control.  — 

DISCRETION. — The  matter  lies  entirely  within  the  discretion  of  the  court. 

APPEAL  from  the  First  District  Court  for  Laramie  county. 


May,  1870.]  MARTIN  v.  MOORE.  23 


Statement  of  Facts. 


Two  errors  were  assigned  by  appellant :  1.  The  overruling 
of  his  demurrer  to  plaintiff's  complaint;  2.  The  refusal  of 
the  court  to  extend  the  defendant's  time  to  answer. 

The  action  was  brought  under  the  code  of  Dakota,  and 
the  complaint,  after  stating  the  title  of  the  cause,  proceeds 
as  follows : 

"  The  said  plaintiffs  complain  of  the  said  defendant,  and 
allege  that  at  the  times  hereinafter  mentioned,  Jacob  Down- 
ing was  a  probate  judge  in  and  for  the  county  of  Arapahoe, 
in  the  territory  of  Colorado,  having  authority  under  and  .by 
virtue  of  an  act  of  said  territory,  entitled  '  An  act  concern- 
ing probate  courts,'  passed  on  the  seventh  day  of  Novem- 
ber, 1861,  to  hold  court,  and  having  jurisdiction  as  such 
over  actions  where  the  amount  in  controversy  does  not  ex- 
ceed three  hundred  dollars. 

u  That  on  the  fourth  day  of  July,  1868,  at  the  city  of 
Denver,  in  the  county  of  Arapahoe  aforesaid,  the  plaintiff 
commenced  an  action  against  the  defendant  before  the  pro- 
bate judge,  by  summons  duly  issued  bjr  said  probate  judge 
on  that  day,  for  the  recovery  of  one  hundred  and  thirteen 
dollars  and  twenty-five  cents,  for  goods,  wares  and  mer- 
chandise sold  and  delivered  to  the  defendant  by  the  plain- 
tiffs at  defendant's  request,  which  summons  was  duly  and 
personally  served  on  the  defendant;  that  such  proceedings 
were  had  thereupon,  that,  on  the  sixth  day  of  August,  1868, 
in  said  action  the  plaintiffs  recovered  judgment,  which  was 
duly  given  by  said  probate  judge  against  the  defendant  for 
the  sum  of  one  hundred  and  thirteen  dollars  and  twenty- 
rive  cents  for  said  debt,  and  sixty-six  dollars  seventy-five 
cents  costs:  and  plaintiffs  further  say  that  no  part  thereof 
has  been  paid. 

''  Wherefore,  the  plaintiff  pray  judgment  against  the  de- 
fendant for  the  sum  of  one  hundred  and  eighty  dollars,  the 
total  amount  of  the  said  judgment,  with  the  accruing  costs, 
amounting  to  fifteen  dollars,  and  the  costs  of  this  suit. 
Whitehead  &  Corlett,  plaintiffs'  attorneys." 


24  MARTIN  v.  MOOEE.  [Sup.  Ct. 


Statement  of  Facts. 


To  which  complaint  the  defendant  interposed  the  following 
demurrer : 

"  District  Court,  Laramie  County.  Martin  &  Nucholls  v. 
James  Moore.  Demurrer.  Now  comes  defendant  and  de- 
murs to  the  complaint  herein  for  these  reasons  :  1.  The 
complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action ;  2.  The  plaintiff  relies  on  the  judgment 
pretended  to  have  been  recovered  in  Colorado  Territory, 
and  does  not  set  out  any  copy  of  the  record  or  show  to  the  court 
in  what  manner  the  court  in  Colorado  proceeded ;  3.  The 
complaint  does  not  state  the  facts  upon  which  plaintiff  ex- 
pects to  recover,  as  distinguished  from  the  conclusions  of 
law.  J.  W.  Cook,  Miller  and  Street,  defendant's  attorneys." 

The  demurrer  was  overruled,  and  an  exception  taken  by 
the  defendant,  who  was  given  three  days  in  which  to  file  his 
answer. 

Four  days  after  the  time  thus  allowed  for  answering  had 
expired,  the  defendant,  by  one  of  his  attorneys,  filed  a 
motion,  asking  for  further  time  to  answer,  and  an  affidavit 
made  by  said  attorney  attempting  to  show  that  defendant 
had  used  due  diligence,  and  that  he  had  a  just  defense  upon 
the  merits,  but  he  neither  made  the  usual  affidavit  of  merits 
nor  set  forth  his  means  of  knowledge,  nor  any  of  the  grounds 
of  defense. 

He  did  show  that  he  could  not  draw  the  answer  without 
the  presence  of  the  defendant,  but  that  said  defendant  had 
left  town  two  days  after  the  decision  upon  the  demurrer, 
without  notifying  the  attorney  of  his  intended  departure, 
and  ignorant,  as  the  attorney  believed,  of  such  decision. 

Motion  overruled  and  exception  given  to  defendant.  De- 
fault taken  and  judgment  rendered  for  plaintiff  for  amount 
prayed  for,  and  the  case  taken  to  the  supreme  court  on 
appeal. 

Cook,  Miller  and  Street,  for  appellants. 
Whitehead  and  Corletf,  for  appellees. 
Judgment  of  the  district  court  affirmed. 


May,  1870.]  LANXIER  v.  HAASE.  25 


Statement  of  Facts. 


LANNIER  v.  HAASE  &  FINN. 
COLLINS  v.  DAVIS,  SPRAGUE  &  CO. 
LOWRY  &  UPTON  v.  DAVIS,  SPRAGUE  &  CO. 

PRACTICE — APPEAL. — An  appeal  must  be  perfected  to  entitle  the  appel- 
lant either  to  a  stay  of  proceedings,  or  to  a  hearing  on  the  appeal. 
Serving  notice  of  appeal,  and  also  filing  in  addition  thereto  a  bond 
on  appeal  is  insufficient  unless  the  record  has  been  properly  taken 
to  the  appellate  court.  If  the  appeal  has  not  been  perfected  the 
course  for  the  appellee  to  pursue  is  by  motion  to  dismiss  the  ap- 
peal. 

APPEALS  from  the  First  District  Court  for  Laramie  County. 

In  these  three  causes  the  appellants  having  served  notices 
of  appeal,  and  filed  bonds,  took  no  further  action  therein 
until  the  supreme  court  convened,  when  the  appellees  re- 
spectively filed  their  several  motions  to  dismiss  the  appeal, 
on  the  ground,  especially,  that  such  appeal  had  not  been 
perfected  by  duly  filing  a  transcript  in  the  supreme  court  of 
the  proceedings  in  the  court  below. 

The  motion  was  in  each  case  granted,  the  court  holding 
that  it  was  then  too  late  to  bring  up  the  records  of  the  dis- 
trict court. 


EEPOETS  OF  OASES 


DETERMINED   IN 


•      THE   SUPREME   COURT 


OF 


WYOMING  TERRITOKY. 
JULY  TERM,  1871. 


THE  UNION  PACIFIC  RAILROAD  COMPANY  v. 

HAUSE. 

DAMAGES,  RAILROAD  COMPANIES.  — A  railroad  company  is  not  responsi- 
ble in  damages  to  a  person  injured  by  an  accident  to  a  train  passing 
over  a  portion  of  the  road  not  completed,  when  said  train  is  solely 
under  the  charge  of  the  contractors  building  the  road,  and  receiv- 
ing all  the  profits  thereof,  that  portion  of  the  road  still  being  un- 
accepted by  the  company.  If  any  one  is  liable  for  damages  it  is 
the  contractors,  and  not  the  railroad  company. 

IDEM. — Where  suits  are  brought  for  injuries  arising  from  accidents  on 
railroads,  exemplary,  punitive  or  vindictive  damages  should  not  be 
awarded  except  in  extreme  cases.  The  general  rule  is,  that  suf- 
ficient damages  should  be  given  to  fully  compensate  the  plaintiff 
for  his  loss  of  time  and  suffering. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

The  following  statement  of  the  case  fully  presents  the 
exceptions  and  points  argued  by  counsel,  and  was  filed  by 
the  judge  who  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  in  the  first  judicial  district 
of  the  territory  of  Wyoming,  in  the  court  liolden  in  and 

27 


28  UNION  PACIFIC  R.  It.  Co.  v.  HAUSE.    [Sup.  Ct. 


Statement  of  Facts. 


for  the  county  of  Laramie,  at  the  March  term,  A.  D.  1870, 
Hon.  Wm.  T.  Jones,  associate  justice  and  judge  of  the 
third  judicial  district  of  said  territory,  presiding  and  hold- 
ing court  in  and  for  the  first  district.  On  the  ninth  day  of 
May,  A.  D.  1868,  the  plaintiff  in  error  and  defendant  in  the 
court  below,  an  incorporated  company,  by  an  act  of  con- 
gress under  the  name,  style  and  title  of  The  Union  Pacific 
Railroad  Company,  and  as  such  was  operating  a  part  of 
their  road  which  was  then  completed  from  Omaha  on  the 
Missouri  river  in  the  state  of  Nebraska  to  the  city  of  Chey- 
enne, in  the  territory  of  Wyoming,  a  distance  of  about  five 
hundred  miles ;  that  the  said  company  had  under  contract 
and  nearly  finished  a  portion  of  their  said  road  west  of  the 
city  of  Cheyenne  to  and  beyond  the  city  of  Laramie,  in  the 
county  of  Albany  in  said  territory  of  Wyoming.  That  on  the 
said  ninth  day  of  May,  A.  D.  1868,  there  were  cars  running  on 
the  said  road  from  Cheyenne  for  the  purpose  of  conveying 
freight  to  and  beyond  Laramie,  with  a  box-car  commonly 
called  a  "  caboose"  attached,  in  which,  as  well  as  upon  said 
freight  cars,  passengers  were  carried  for  hire  or  pay.  That 
Silas  Hause,  the  defendant  in  error  and  plaintiff  in  the 
court  below,  did  on  the  ninth  day  of  May,  1868,  take  pas- 
sage on  the  said  train  at  Cheyenne  in  said  territory,  and 
upon  the  said  Union  Pacific  Railroad,  for  the  purpose  of 
going  to  Laramie  city.  That  Silas  Hause  had  a  ticket  in 
the  usual  form  of  railroad  tickets,  which  was  handed  to  him 
by  a  friend,  which  said  ticket  was  taken  up  by  the  con- 
ductor of  the  train  after  leaving  Cheyenne.  Tliat  some 
distance  east  of  what  is  now  known,  and  was  then  known, 
as  Sherman  station,  some  of  the  cross-ties  of  the  said  rail- 
road became  broken,  the  rails  of  said  road  parted,  or  as  it 
was  termed  by  the  witnesses  "  spread,"  and  several  of  the 
cars,  including  the  one  on  which  Silas  Hause,  the  plaintiff 
below,  was  riding,  ran  off  the  track  and  down  an  embank- 
ment, some  on  the  right  and  others  on  the  left  side  of  the 
road.  That  Silas  Hause,  the  said  plaintiff  below,  was  rid- 
ing on  the  top  of  a  box  or  house-car — that  when  the  acci- 


July,  1871.]  UNION  PACIFIC  R.  R.  Co.  v.  HAUSE.  29 


Statement  of  Facts. 


dent  was  occurring  the  said  Silas  Hause  jumped  off,  and  a 
barrel  of  molasses  burst  through  the  side  of  the  'car  and 
struck  the  said  Silas  Hause  on  the  leg,  causing  a  serious 
compound  fracture.  That  the  said  Silas  Hause  was  taken 
charge  of  by  certain  surgeons,  who  dressed  his  wound,  re- 
duced the  fracture,  and  subsequently  brought  him  to  Chey- 
enne, placed  him  in  a  hospital  and  took  care  of  him  for  a 
considerable  time,  and  until  he  was  discharged  as  a  conva- 
lescent. 

The  allegations  set  out  in  the  petition  of  the  plaintiff  in 
the  court  below,  Silas  Hause,  are  that  the  defendant  in 
the  court  below  is  and  was  on  the  ninth  day  of  May,  1868, 
a  corporation  under  the  name,  style  and  title  of  the  Union 
Pacific  Railroad  Company,  deriving  and  enjoying  its  corpo- 
rate privileges  by  virtue  of  an  act  of  congress.  That  on  the 
ninth  day  of  May,  A.  D.  1868,  the  said  company  was  running 
a  train  of  cars  of  a  mixed  character  on  their  said  road  from 
Cheyenne  to  Laramie  ;  that  the  said  train  carried  freight  for 
different  persons,  and  also  carried  passengers,  for  which 
both  freight  and  passengers  they  demanded  and  received 
pay  or  hire ;  that,  although  they  may  not  have  made  any  for- 
mal proclamation  to  that  effect,  yet  they  were  known  and  re- 
cognized as  common  carriers ;  that  in  consequence  of  the 
imperfections  of  their  road  the  train  of  cars  on  which  Silas 
Hause  was  being  conveyed  was  thrown  off  the  track,  and 
that  the  said  Silas  Hause  received  such  injuries  as  to  make 
him  a  cripple,  laying  the  damages  at  ten  thousand  dollars. 

This  the  defendant  in  the  court  below  answers,  admitting 
the  first  allegation,  viz  :  that  the  said  defendant  was  and  is 
an  incorporated  company,  but  denying  all  the  other  allega- 
tions, and  sets  out  specifically  that  the  said  railroad  west  of 
Cheyenne  was,  on  the  ninth  day  of  May,  A.  D.  1868,  in  the 
hands  of  the  contractor  for  building  said  road;  and  that  if 
the  said  plaintiff  in  the  court  below  was  injured  and  entitled 
to  damages,  that  he  must  look  to  the  contractor  and  not  to 
the  said  railroad  company  for  them. 

The  case  coining  on  for  trial,  after  the  plaintiff  had  sub- 


30  UNION  PACIFIC  R.  R  Co.  v.  HAUSE.        [Sup.  Ct, 


Statement  of  Facts.    ' 


mitted  his  evidence,  a  motion  was  made  by  defendant's  coun- 
sel for  a  nonsuit,  which  motion  was  overruled,  and  a  verdict 
after  trial  was  found  for  plaintiff  for  the  sum  of  ten  thousand 
dollars  ($10,000).  A  motion  was  then  made  for  a  new  trial, 
and  the  exceptions  taken  both  to  the  rulings  of  the  court 
and  to  the  verdict  of  the  jury  assigned  as  reasons  for  the 
new  trial,  and  the  motion  was  refused. 

The  case  being  certified  to  this  court,  the  plaintiff  in  error 
assigns  as  exceptions,  among  other  things  :  that  the  court 
erred  in  refusing  defendant's  motion  for  a  nonsuit ;  that  the 
verdict  is  not  supported  by  the  evidence,  and  cites  various 
authorities,  among  which  are :  1.  To  the  error  of  the  court 
in  overruling  defendant's  motion  for  a  nonsuit:  Stuart  v. 
Simpson,  1  Wend.  376 ;  Hartfield  v.  Roner,  21  Wend.  615  ; 
Morrison  v.  N.  Y.  $  N.  H.  R.  R.  Co.,  32  Barb.  568 ;  Sheldon 
v.  Hudson  River  R.  R.  Co.,  29  Id.  226 ;  Earing  v.  N.  Y.  £ 
Erie  R.  R.  Co.,  13  Id.  9 ;  Carpenter  v.  Smith,  10  Id.  663 ; 
Spooner  v.  Brooklyn  R.  R.  Co.,  31  Id.  419. 

The  defendant  in  the  court  below  also  takes  the  ground, 
that  the  right  to  a  writ  of  error  is  not  waived  by  offering 
evidence  in  defense  and  proceeding  with  the  trial  after  the 
motion  for  a  nonsuit  is  refused,  and  cites  :  Carpenter  v.  Smith, 
10  Barb.  663 ;  Reed  v.  Davit,  3  Hill,  287  ;  Davis  v.  Hardy,  6 
Barn.  &  Cress.  225  ;  13  Eng.  Com.  Law  R.  112 ;  Eddy  v.  Wil- 
son, Iowa,  259 ;  Fat  v.  Collins,  21  Wend.  109 ;  Burr.  Prac. 
239,  240 ;  Wyoming  Code,  sec.  304 ;  Idaho  Code,  sec.  311. 

On  the  question  of  excessive  damages  the  counsel  for 
plaintiff  in  error  cites  among  other  authorities  :  Wyoming 
Code,  sec.  311 ;  Jordan  v.  Reed,  1  Iowa,  135  ;  Midland  Pacific 
R.  R.  Co.  v.  McCartney,  1  Neb.  398;  Nebraska  Code,  sec. 
314. 

On  the  question  of  the  verdict  being  unsupported  by  the 
evidence,  is  cited  several  authorities,  which  we  do  not  deem 
it  important  to  insert  here.  It  is  alleged  that  there  was  not 
sufficient  evidence  to  show  that  the  defendant  in  the  court 
below  was  a  common  carrier,  or  that  it  was,  as  is  claimed, 
a  common  carrier  at  the  time  the  accident  occurred  on  the 


July,  1871.]  UNION  PACIFIC  R.  R.  Co.  v.  HAUSE.  31 


Statement  of  Facts. 


railroad  west  of  Cheyenne  ;  in  fact,  it  is  denied  that  it  either 
was  or  had  ever  held  itself  out  as  such,  nor  had  it  sold  a 
ticket  to  plaintiff  or  any  other  person ;  nor  in  any  manner, 
either  for  hire  or  pay  or  for  any  consideration  whatever, 
undertaken  to  carry  either  freight  or  passengers.  It  is  in 
evidence  that,  the  contractors  had  been  running  cars  over 
the  partially-finished  road  west  of  the  city  of  Cheyenne, 
and  continued  so  to  do  until  either  the  eleventh  day  of  May, 
A.  D.  1868,  or  the  eighteenth  of  the  same  month,  the  wit- 
nesses not  being  certain  on  which  of  the  two  days ;  but  no 
witness  is  called  who  proves  that  the  plaintiff  in  error  had 
undertaken  to  run  cars  west  of  Cheyenne  on  the  ninth  of 
May,  1868.  The  plaintiff  in  the  court  below  does  not,  nor 
do  any  of  the  witnesses,  state  that  he  bought  a  ticket  from 
the  defendant  below.  It  is  in  evidence,  however,  that  the 
train  which  ran  west  of  Cheyenne,  and  which,  it  is  alleged, 
was  run  in  the  interests  of  the  contractors,  did  not  start 
from  the  depot  of  the  plaintiff  in  error,  but  from  a  place 
several  hundred  yards  west  of  where  the  trains  were  arriv- 
ing and  departing  to  and  from  Cheyenne  and  Omaha.  It 
is  also  shown  by  an  employee  of  the  plaintiff  in  error,  who 
kept  its  books,  that  no  part  of  the  earnings  of  the  train 
which  was  run  west  of  Cheyenne,  prior  to  May  11,  1868, 
was  received  by  the  plaintiff  in  error,  and  there  is  no 
attempt  to  contradict  either  this  or  any  kindred  statement 
on  the  part  of  defendant  in  error.  It  is  alleged  by  the 
plaintiff  below  that  after  he  was  injured  that  he  was  taken 
in  charge  by  the  surgeons  of  the  defendant  below,  and 
taken  to  its  hospital.  This,  while  not  deemed  a  very  im- 
portant statement,  is,  however,  denied  by  the  testimony  of 
the  surgeons,  who  say  that  the  hospital  did  not  belong  to 
defendant  below,  but  was  a  private  enterprise  of  their 
own.  It  is  alleged  that  the  damages  awarded  by  the  jury, 
admitting  that  the  facts  as  detailed  justified  them  in  finding 
any  damages  at  all,  were  greatly  in  excess  of  what  they 
should  be,  from  the  fact  that  damages  should  be  in  the 
nature  of  compensation  for  loss  of  time,  interference  with 


32  UNION  PACIFIC  R.  R.  Co.  v.  HAUSE.     [Sup.  Ct. 


Statement  of  Facts. 


business  and  a  reasonable  allowance  for  bodily  suffering, 
and  cites  :  Civ.  Code  Wyoming,  sec.  311 ;  Collins  v.  ^4..  £  G. 
It.  R.  Co.,  12  Barb.  492  ;  Clapp  v.  A.  R.  R.  R.  Co.,  19  Id. 
461. 

They  therefore  claim,  as  before  stated:  1.  Error  in  the 
court  below  in  refusing  to  grant  a  nonsuit ;  2.  That  there 
was  not  sufficient  evidence  to  justify  the  jury  in  awarding 
any  damages,  but  the  verdict  should  have  been  for  the  de- 
fendant below ;  3.  That  if  the  jury  were  justified  in  finding 
for  plaintiff  below,  that  then  the  damages  found  are  greatly 
in  excess  of  what  the  jury  was  justified  in  finding.  There  are 
several  other  exceptions  urged  by  plaintiff  in  error  which 
we  have  not  referred  to,  one  of  which  we  will  merely  men- 
tion incidentally,  and  that  is,  that  the  court  erred  in  refus- 
ing a  new  trial.  The  counsel  for  defendant  in  error  reply 
to  the  foregoing,  and  claim  that  the  fact  that  the  plaintiff  in 
error  was  the  owner  of  the  Union  Pacific  Railroad,  and  that 
cars  were  running  on  the  ninth  of  May,  1868,  is  prima  facie 
evidence  of  ownership  in  the  road  and  cars,  and  that  the 
burden  of  proof  is  thrown  on  plaintiff  in  error  to  rebut  the 
presumption  of  careless  management  and  liability  for  in- 
juries sustained,  and  cite,  among  other  authorities  :  2  Red. 
on  Railroads,  202,  1  Id.  532;  1  Hill,  on  Torts,  120,  125  and 
note  ;  Reed  on  Carriers,  383  ;  and  that  railroads  are  presumed 
to  be  common  carriers,  cites :  2  Hill,  on  Torts,  356. 

As  to  the  refusal  of  the  court  to  sustain  the  motion  for 
nonsuit,  the  counsel  for  defendant  in  error  cites :  3  Barb. 
419 ;  4  Seld.  497  ;  and  also  authorities  above  cited.  As  to 
the  question  of  excessive  damages,  cites:  Sedg.  on  Dam- 
ages, 712;  Red.  on  Carriers,  315  et  seq. 

It  is  alleged,  also,  that  the  defendant  in  error  is  entitled 
to  damages,  not  to  be  measured  by  the  loss  of  time  merely, 
but  is  entitled  to  recover  such  an  amount  as  will  reimburse 
him,  not  only  for  his  loss  in  time,  but  for  physical  sufferings 
during  the  time  of  his  confinement  in  the  hospital,  and  on 
account  of  the  permanent  injury  likely  to  ensue. 


July,  187  l.J  UNION  PACIFIC  R.  R.  Co.  v.  MAUSE.  33 

Opinion  of  the  Court — Fisher,  J. 
W.  R.  Steele,  for  plaintiff  in  error. 

W.  W.  Corlett,  for  defendant  in  error. 

By  the  Court,  FISHER,  J.  We  are  not  prepared  to  say 
that  the  learned  judge  in  the  court  below  erred  in  refusing 
to  grant  the  nonsuit  prayed  for  by  the  counsel  for  the  defend- 
ant in  that  court,  as  there  was  a  prima  facie  case  made  out, 
both  by  the  allegations  contained  in  plaintiff's  petition  and 
the  evidence  submitted,  to  justify  the  court  in  proceeding 
to  a  fuller  investigation  than  had  been  arrived  at  at  the  stage 
in  evidence  which  had  then  been  reached.  At  least  one  of 
the  allegations  in  the  petition  had  been  admitted,  and  an- 
other one  had  been  sufficiently  sustained  by  the  evidence 
to  justify  the  court  in  eliciting  further  light.  We  think  that 
the  question  of  granting  the  nonsuit  was  entirely  in  the  dis- 
cretion of  the  court,  and  in  this  we  are  abundantly  sustained 
in  Pratt  v.  Hull,  13  Johns.  334  ;  Labar  v.  Roplin,  4  N.  Y. 
549. 

Had  the  motion  for  the  nonsuit  been  submitted  after  all 
the  evidence  had  been  given  both  for  plaintiff  and  defend- 
ant, we  are  inclined  to  think  it  might  have  met  with  a  dif- 
ferent response  from  the  court.  And  this  leads  us  to  say 
that  under  the  evidence  given,  and  the  case  had  gone  to  the 
jury  under  the  instructions  of  the  court,  they  should  have 
found  for  the  defendant,  inasmuch  as  it  is  not  shown  that 
the  defendant  was  a  common  carrier  on  that  portion  of  the 
road  upon  which  the  accident  occurred ;  but  that  on  the 
contrary  the  cars  were  run  by  the  contractors  for  the  con- 
struction of  that  part  of  the  road,  managed  by  them  and 
for  their  interest  and  profit;  the  defendant  receiving  no  part 
of  the  revenues  arising  from  the  carrying  either  of  freight 
or  passengers.  Hence  we  have  no  difficulty  in  arriving  at 
the  conclusion  se-t  out  in  the  exception  by  the  plaintiff  in 
error  that  the  verdict  was  not  supported  by  sufficient  evi- 
dence :  but  that  it  is  not  supported  by  any  evidence  at  all. 
While  we  would  hesitate  in  interfering  with  the  verdict  of 
3 


34  UNION  PACIFIC  R.  R.  Co.  v.  HAUSE.    [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  J. 

juries,  knowing  that  they  are  regarded  as  one  of  the  "bul- 
warks of  our  Gothic  liberties,"  yet  when  they  become  so 
clearly  wrong  as  in  the  case  under  consideration,  they  lose 
their  title  of  "  defenders  of  the  rights  of  the  citizen,"  and 
become  engines  of  oppression.  The  consideration  of  the 
fact  of  the  total  want  of  evidence  submitted  in  this  case, 
would  in  itself  be  amply  sufficient  to  justify  our  conclusions, 
and  lead  us  to  wonder  why  the  court  below  should  have  had 
any  hesitation  in  granting  a  new  trial. 

But  there  is  another  exception  urged  which  in  itself  ought 
to  remand  this  case  to  the  court  whence  it  came  for  a  recon- 
sideration, and  that  is  the  question  of  the  amount  of  damages 
awarded  the  plaintiff  below  by  the  jury.  That  the  award 
is  not  only  excessive  but  unreasonable,  and  were  it  not 
that  we  do  not  feel  disposed  to  deal  in  terms  of  harsh- 
ness, we  might  say  that  the  jury  either  did  not  comprehend 
the  obligation  implied  by  their  oaths,  or  else  some  demon 
of  malevolence  perverted  their  judgment  so  as  to  lead  them 
into  a  vindictive  spirit  of  persecution.  Damages  for  inju- 
ries should  be  assessed  in  the  nature  of  compensation. 
Juries  should  not  presume  that  defendants  have  done  inten- 
tional wrongs;  that  they  willfully  and  maliciously  inflicted 
injury  upon  any  one  unless  the  facts  as  developed  on  the 
trial  irresistibly  lead  to  such  a  conclusion.  It  is  generally 
supposable  that  railroad  accidents  entail  heavy  losses  upon 
the  companies,  and  that  they  are  not  caused  with  any  malev- 
olent spirit  of  doing  injury  to  the  person  or  property  of 
their  patrons,  and  while  they  are  legally  responsible  for  in- 
juries resulting  from  accident,  they  should  not  be  punished 
in  a  vindictive  spirit,  unless  it  becomes  necessary  to  do  so 
to  mete  out  to  them  measure  for  measure. 

In  the  case  before  us,  taking  the  allegations  of  the  plaintiff 
below  as  the  standard  by  which  they  were  governed,  allow- 
ing those  allegations  to  be  sustained,  surely  no  defendant 
could  have  shown  a  truer  spirit  of  benevolence  than  was 
exhibited  by  this  plaintiff  in  error.  Surgeons  of  acknowl- 
edged skill  were  promptly  sent  to  the  scene  of  accident,  a 


July,  1871.]  UNION  PACIFIC  R.  R.  Co.  v.  HAUSE.  35 

Opinion  of  the  Court — Fisher,  J. 

hospital  with  all  its  benevolent  appliances  was  thrown  open 
for  the  plaintiff's  admission  and  care,  and  everything  which 
the  promptings  of  humanity  could  suggest  were  supplied  in 
alleviating  his  sufferings. 

This,  while  it  was  no  more  than  the  precepts  of  Christi- 
anity prompt,  is  but  another  instance  of  the  rule  which 
generally  prevails  in  similar  emergencies  ;  hence,  the  meas- 
ure of  damages  should  be  regulated  in  the  form  of  com- 
pensation, and  not  with  a  motive  to  punish  the  uninten- 
tional wrong-doer.  Punitive  or  exemplary  damages  may 
be  awarded  in  cases  where  personal  injuries  have  been  com- 
mitted through  wantonness  or  even  gross  carelessness  of  one 
party  upon  another,  but  there  should  be  clear  and  unmis- 
takable evidence  of  an  intention  to  do  the  personal  injury 
complained  of,  before  the  jury  would  be  justified  in  finding 
an  amount  greatly  beyond  the  actual  loss  sustained  by  the 
person  injured. 

In  the  case  before  us,  we  are  very  clear  in  the  opinion 
that  the  amount  of  damages  awarded  by  the  jury  is  far  in 
excess  of  the  amount  sustained,  in  a  pecuniary  view  of  the 
case  ;  and  this  in  itself,  leaving  out  of  the  question  the  other 
points  raised  in  the  argument,  would  be  enough  to  justify 
us  in  remanding  the  case  for  reconsideration. 

We  are,  therefore,  compelled  to  remand  this  case,  and 
order  a  venire  de  novo,  under  the  rules  indicated  in  this 
opinion,  and  the  decision  of  the  court  below  is  accordingly 
reversed. 


36  MUBEIN  v.  ULLMAN.  [Sup.  Ct. 


Statement  of  Facts. 


MURRIN  v.  ULLMAN. 

PRACTICE — WKITS  OF  ERROR. — Under  the  provisions  of  the  Wyoming 
code  of  procedure  and  the  rules  of  practice  established  by  the  su- 
preme court,  parties  intending  to  have  the  case  reviewed  in  the 
supreme  court,  either  by  writ  of  error  or  petition  in  error,  must, 
upon  the  trial,  make  his  objections  clearly  and  distinctly,  briefly 
stating  the  grounds  thereof.  If  overruled,  an  exception  must  be 
noted  then  and  there. 

BILL  OF  EXCEPTIONS. — After  a  motion  for  a  new  trial  has  been  made 
and  overruled  by  the  court  below,  and  an  exception  taken  thereto, 
such  party  must  have  his  bill  containing  all  exceptions,  together 
with  the  motion  for  a  new  trial,  signed  or  allowed  by  the  presiding 
judge  of  the  court  below. 

IDEM. — If  the  plaintiff  in  error  has  not  proceeded  in  accordance  with 
the  foregoing  rules,  it  is  correct  practice  for  the  defendant  in  error 
to  move  the  court  to  dismiss  the  proceedings  in  error. 

SURETIES — JUDGMENT. — Judgment  may  be  entered  against  the  sureties 
on  a  supersedeas  bond  in  proceedings  in  error,  without  bringing  suit 
thereon. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

This  cause  came  up  from  the  district  court  on  a  writ  of 
error,  and  what  was  termed  a  "  transcript ; "  such  transcript 
neither  showing  that  any  motion  for  a  new  trial  had  been 
made  in  the  court  below  and  overruled,  nor  that  any  bill  of 
exceptions  had  been  signed,  nor  in  fact  that  any  exceptions 
had  been  properly  taken.  The  attorney  for  the  defendant 
in  error  moved  to  dismiss  the  proceedings  in  error,  "  because 
the  record  does  not  disclose  that  any  error  of  law  occurred 
during  the  trial  of  said  cause  in  the  court  below,  to  which 
the  plaintiff  in  error  excepted  at  the  time."  Said  attorney 
also  moved  the  court  to  affirm  the  decision  of  the  district 
court,  and  to  order  judgment  against  the  plaintiff  in  error 
and  his  sureties. 

TJiomas  J.  Street,  for  plaintiff  in  error. 
Daniel  McLauyhlin,  for  defendant  in  error. 

Both  motions  being  granted,  the  proceedings  in  error 
were  dismissed  and  the  decision  of  the  district  court  af- 
firmed. 


July,  1871.]  GEEK  v.  MURRIN.  37 


Statement  of  Facts. 


GEER  v.  MURRIN. 

PRACTICE — BILL  OF  EXCEPTIONS. — In  proceedings  in  error  the  rec- 
ord of  the  court  below  must  show  that  a  bill  of  exceptions,  contain- 
ing the  exceptions  upon  which  the  plaintiff  in  error  relies,  was  duly 
made  up  and  signed  by  the  judge  of  said  court  within  the  time  lim- 
ited by  statute. 

IDEM. — After  a  motion  for  a  new  trial  has  beeu  made  and  overruled  by 
the  court  below  and  an  exception  taken  thereto,  such  party  must 
have  his  bill  containing  all  exceptions  upon  which  he  relies,  together 
with  the  motion  for  a  new  trial,  signed  or  allowed  .by  the  presiding 
judge  of  the  court  below. 

IDEM. — If  the  plaintiff  in  error  has  not  proceeded  in  accordance  with 
the  foregoing  rules,  it  is  the  correct  practice  for  the  defendant  in 
error  to  move  the  court  to  dismiss  the  proceedings  in  error. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

The  record  in  this  case  from  the  district  court  does  not 
show  that  any  motion  for  a  new  trial  was  made  and  over- 
ruled, or  that  any  bill  of  exceptions  was  signed.  No  record 
appears  to  have  been  made  out  in  the  usual  form,  but  a  pa- 
per on  file,  and  indorsed  a  "  transcript,"  contains  among 
other  matter  the  following :  "  Be  it  remembered  that  at  the 
November  term  of  the  district  court  for  the  first  judicial  dis- 
trict, Wyoming  Territory,  the  following  judgment  was  ren- 
dered, to  wit: 

"  Thomas  D.  Murrin  v.  John  Geer.  November  term, 
1870  ;  Wednesday,  November  23,  1870.  This  day  came  the 
parties  by  their  attorneys,  and  thereupon  came  a  jury,  who 
having  been  duly  impaneled,  and  sworn  the  truth  to  speak 
upon  the  issue  joined  upon  their  oaths,  do  say  that  the  de- 
fendant is  indebted  to  the  plaintiff  in  the  sum  of  six  hun- 
dred and  eight  dollars  5  and  it  is  thereupon  considered  and 
adjudged  by  the  court  that  the  plaintiff,  Thomas  D.  Murrin, 
do  recover  of  the  defendant,  John  Geer,  the  said  sum  of 
six  hundred  and  eight  dollars,  and  costs  of  suit  taxed  to 
thirty  dollars  and  seventy-five  cents.  J.  II.  Home,  Judge/' 
etc. 


38  GEER  v.  MURRIN.  [Sup.  Ct. 


Statement  of  Facts. 


At  the  commencement  of  the  proceedings  in  error,  the 
plaintiff  -in  error  filed  the  following  undertaking : 

"  First  Judicial  District  Court,  Thomas  D.  Murrin,  plain- 
tiff, v.  John  Geer,  defendant.  Whereas,  on  the  twenty-third 
day  of  November,  1870,  said  plaintiff  recovered  a  judgment  in 
said  court  against  said  defendant  for  the  sum  of  six  hundred 
and  eight  dollars  debt  and  thirty  dollars  seventy-five  cents 
costs  of  suit ;  and  the  said  defendant  desires  to  appeal  from 
the  judgment  of  said  court  in  said  cause  to  the  supreme 
court  of  said  territory. 

"  Now,  therefore,  we,  John  Geer,  as  principal,  and  Stephen 
Bin  and  F.  Schweickert,  all  of  said  county  and  territory, 
undertake  and  promise  to  the  said  plaintiff,  that  if  said 
judgment  be  not  reversed  in  said  supreme  court,  that  we 
will  pay  to  said  plaintiff  the  amount  of  said  judgment  and 
all  costs  and  damages  not  exceeding  fourteen  hundred  dol- 
lars. John  Geer,  S.  Bin,  F.  Schweickert." 

The  said  sureties  duly  justified,  and  the  clerk  of  the  court 
approved  said  undertaking. 

Thereafter,  the  following  motion  was  filed  by  the  attorney 
for  the  defendant  in  error : 

"  In  Supreme  Court,  Wyoming  Territory.  John  Geer, 
plaintiff  in  error,  v.  Thomas  D.  Murrin,  defendant  in  error: 
Now  comes*  Thomas  J.  Street,  attorney  for  the  above- 
named  defendant  in  error,  and  moves  the  court  now  here 
to  affirm  the  judgment  of  the  court  below,  as  well  against 
the  said  plaintiff  in  error,  John  Geer,  as  against  Stephen 
Bin  and  Fred.  Schweickert,  the  sureties  in  the  undertaking 
for  the  proceedings  in  error  herein  filed  and  given,  for  the 
whole  amount  of  the  said  judgment  and  costs,  with  the  ac- 
cruing costs,  together  with  damages  in  the  amount  thereof 
of  twelve  per  centum,  as  prescribed  by  the  statute  in  such 
case  provided,  for  these  reasons,  to  wit:  1.  Because  the 
said  plaintiff  in  error  neither  excepted  to  the  decision  and 
judgment  of  the  court  below,  nor  filed  and  made,  nor  caused 


July,  1871.]    IIoitTON  AND  REEL  v.  PEACOCK.  39 


Statement  of  Facts. 


to  be  filed  and  made,  any  bill  or  bills  of  exception,  showing 
wherein  the  said  plaintiff  in  error  objected  to  the  ruling  of 
the  court  below ;  and,  2.  Because  it  appears  from  the  whole 
record  and  transcript  of  the  proceedings  of  the  court  below 
herein  filed  on  the  part  of  the  defendant  in  error,  that  the 
said  proceedings  in  error  were  wholly  taken  for  delay. 
Thos.  J.  Street,  attorney  for  defendant  in  error." 

W.  W.  Corlett,  for  plaintiff  in  error. 
Thomas  J.  Street,  for  defendants  in  error. 
Motion  granted. 


HORTON  AND  REEL  v.  PEACOCK. 

PROCEEDINGS  ix  ERROR — PRACTICK. — In  commencing  proceedings  in 
error  the  provisions  of  the  statutes  must  be  strictly  complied  with. 
Thus,  where  the  statutes  require  absolutely  that  a  bond  or  under- 
taking for  suits,  etc.,  be  given  by  plaintiff  in  error,  and  he  fails  so 
to  do,  his  proceedings  will,  on  motion,  be  dismissed. 

ERROR  to  Laramie  County,  First  Judicial  District  Court. 

Judgment  was  entered  in  the  district  court  in  favor  of 
Amos  Peacock,  then  plaintiff,  now  defendant  in  error, 
against  llorton  and  Reel,  now  plaintiffs  in  error,  and  then 
defendants.  In  their  proceedings  in  error,  the  said  plain- 
tiff failed  to  execute  and  file  the  bond  required  by  statute, 
whereupon  the  attorneys  for  the  defendant  in  error  moved 
to  dismiss  the  proceedings  in  error,  and  to  affirm  the  judg- 
ment of  the  district  court  for  the  reason  stated. 

Thomas  J.  Street,  for  plaintiff  in  error. 

D.  MeLawjhUn,  W.  R.  Steele  $  E.  P.  Johnson,  for  defend- 
ants in  error. 

Motion  granted. 


SCOTT  v.  THE  UNITED  STATES.    [Sup.  Ct. 


Statement  of  Facts. 


SCOTT,  alias  JONES,  v.  THE  UNITED  STATES. 

JURISDICTION  OF  THE  UNITED  STATES. — Under  the  provisions  of  the 
organic  act  of  the  territory  of  Wyoming,  the  United  States  has  ex- 
clusive jurisdiction  over  the  forts  and  military  reservations  thereof. 
The  federal  judges  of  the  territory,  sitting  with  the  powers  of  cir- 
cuit and  district  judges  of  the  United  States,  are  empowered  to  try 
all  offenses  committed  on  such  reservations,  against  the  laws  of  the 
United  States. 

ERROR  to  the  Second  District  Court. 

Richard  Scott,  alias  Nathan  Jones,  was  indicted  at  a  term 
of  the  district  court,  sitting  as  a  circuit  court  of  the  United 
States,  held  at  Rawlins,  Carbon  county,  Wyoming,  under  the 
laws  of  the  United  States,  for  the  crime  of  murder. 

He  was  tried,  found  guilty,  and  sentenced  to  suffer  the 
extreme  penalty  of  the  law.  Upon  the  trial  it  was  proven 
that  the  offense  was  committed  upon  the  United  States 
military  reservation  of  Fort  Fred  Steele,  in  said  county  and 
territory. 

Counsel  for  prisoner,  on  motion  for  new  trial,  urged  that 
the  same  should  be  granted  because : 

I.  The  United  States  in  this  territory  have  not  exclusive 
jurisdiction  over  the  military  reservations  therein. 

II.  That  the  prisoner  should  have  been  tried  on  the  ter- 
ritorial side  of  the  court,  and  not  upon  that  of  the  United 
States ;  that  is,  he  should  have  been  tried  for  a  crime  against 
the  laws  of  the  territory,  and  prosecuted  by  the  county  at- 
torney with   a   jury   impaneled   under  the  territorial    laws, 
instead   of   being  tried  for  an   offense   against  the  general 
government,  prosecuted  by  the  United  States  district  attorney, 
and  by  a  jury  impaneled  under  the  laws  of  the  United  States. 

III.  Because  upon  the  trial  of  this  cause  it  did  not  appear 
that  the  defendant  committed  any  crime  against  the  laws  of 
the  United  States,  as  alleged  in  the  indictment  in  the  cause. 

IV.  Because  it  did  not  appear,  upon  the  trial  of  this  cause, 
that  the   offense  charged   in  the  indictment  herein  against 
the   defendant   was    committed    in    any   fort,   arsenal,  dock 


July,  1871.]      ROGERS  v.  LOWKY  &  UPTON.  41 


Statement  of  Facts. 


yard,  magazine,  or  other  place  or  district  of  country,  under 
the  sole  and  exclusive  jurisdiction  of  the  United  States. 

V.  Because  the  said  verdict  is  not  supported  by  sufficient 
evidence,  and  is  contrary  to  law. 

VI.  Because  the  court  erred  in  instructing  the  jury  as  to 
the  law  applicable  to  the  case,  to  which  instructions  the  said 
defendant  then  and  there  excepted. 

The  motion  for  a  new  trial  was  overruled,  and  the  cause 
brought  by  writ  of  error  to  the  supreme  court. 

M.  G.  Brown  $  W;  W.  Corlett,  for  plaintiff  in  error. 

J.  W,  Carey,  United  States  District  Attorney,  for  defendant 
in  error. 

Decision  of  the  court  below  affirmed. 


IVINSON  v.  THE  TERRITORY  OF  WYOMING. 

ERROR  to  Laramie  County,  First  District  Court. 

Proceedings  in  error  dismissed  for  the  same  reasons  given 
in  the  preceding  cases  of  Murrin  v.  ULlman  and  Greer  v. 
Murrin. 

Corlett  £  Broivn,  for  plaintiff  in  error. 
Downey  $  Carey,  for  defendant  in  error. 


ROGERS  v.  LOWRY  &  UPTON. 
ERROR  to  First  District  Court,  Laramie  County. 
J.  W.  Cook  ,f  W.  W.  Corlett,  for  plaintiff  in  error. 
Thomas  J.  Street,  for  defendant  in  error. 

The  same  decision  was  rendered  by  the  court,  and  for  the 
same  reasons,  as  stilted  in  the  preceding  cases  of  Murrin  v. 
Ullman  and  G<'<r  v.  Murrin. 


42  WILSON  v>  O'BRiEtf,  [Sup.  Ct, 


Statement  of  Facts. 


, 

ROGERS  v.  COLLINS. 

ERROR  to  First  District  Court,  Laramie  County. 
J.  W.  Cook  and  W.  W.  Corlett,  for  plaintiff  in  error. 
Thomas  J.  Street  and  M.  C.  Brown,  for  defendant  in  error. 

Proceedings  in  error  dismissed,  and  judgment  of  the  court 
below  affirmed,  for  the  reasons  given  in  the  two  causes  last 
hereinbefore  cited. 


SEARS   ET   AL.  v.  THE    BOARD  OF  COUNTY  COM- 
MISSIONERS OF  ALBANY  COUNTY. 

ERROR  to  First  District  Court,  Albany  County. 

M.  C.  Brown,  for  plaintiffs  in  error. 

S.  W.  Downey  and  J.  M.  Carey,  for  defendant  in  error. 

Same  decision  as  in  the  next  preceding  case,  and  judg- 
ment affirmed. 


WILSON  v.  O'BRIEN. 

MOTION  FOB  NEW  TRIAL. — It  is  now  a  well-settled  doctrine  on  that 
subject  that  before  a  party  can  bring  a  case  into  the  supreme  court 
from  a  district  court,  he  must  first  have  made  his  motion  for  a  new 
trial  in  that  court  in  writing  and  assigned  his  reasons  therefor. 

IDEM. — A  motion  for  a  new  trial  must  be  interposed  within  three  days 
after  the  verdict  is  rendered. 

IDEM! — The  district  court  must  first  have  the  opportunity  to  review  the 
errors  complained  of,  which  must  be  assigned  in  such  motion  before 
the  party  complaining  can  bring  the  case  to  the  supreme  court  for 
review. 

ERROR  to  First  District  Court  for  Laramie  County. 

Judgment  was  rendered  in  this  action  in  the  district  court 
for  the  plaintiff,  N.  J.  O'Brien,  and  against  the  defendant 
Wilson.  Said  defendant  then  instituted  proceedings  in 


July,  1871.]  WILSON  v.  O'BRIEN.  43 

opinion  of  the  Court — Kingman,  J. 

error  in  the  supreme  court  without  having  either  made  a 
motion  in  the  court  below  for  a  new  trial,  or  having  a  bill 
of  exceptions  allowed  and  signed  by  the  judge  of  that  court. 
Whereupon  the  counsel  for  the  defendant  in  error  moved  to 
dismiss  the  proceedings  in  the  supreme  court  for  the  rea- 
sons above  stated. 

W.  W.  Corlett  and  E.  P.  Johnson,  for  plaintiff  in  error. 
I.  W.  Cook  and  W.  R.  Steele,  for  defendant  in  error. 

By  the  Court,  KINGMAN,  J.  This  cause  comes  into  this 
court  by  appeal.  It  appears  from  the  record  that  the  case 
was  tried  by  a  jury,  Howe,  C.  J.,  presiding,  and  a  verdict 
rendered  for  the  plaintiff.  No  motion  for  a  new  trial  was 
interposed,  and  three  days  after  the  day  on  which  the  ver- 
dict was  rendered  judgment  was  duly  rendered  by  the  court 
upon  the  verdict  for  the  plaintiff.  The  defendant  assigns  as 
reasons  for  the  reversal  of  the  judgment,  the  rulings  of  the 
district  court  in  rejecting  evidence  offered  by  him  to  dis- 
pute and  contradict  the  receipt  ruled  on,  and  in  admitting 
evidence  offered  by  the  plaintiffs,  etc. 

We  have  already  held  in  another  case  at  this  term,  and 
such  seems  to  be  the  well-settled  doctrine  on  that  subject, 
that  before  a  party  can  bring  a  case  into  this  court  from  the 
district  court,  he  must  first  have  made  his  motion  in  that 
court  in  writing  and  assigned  his  reasons  therefor,  and  un- 
der our  statute  this  motion  must  be  interposed  within  three 
days  after  the  verdict  is  rendered.  Unless  this  is  done,  and 
the  motion  overruled  by  the  district  court,  this  court  will 
not  take  cognizance  of  the  case  to  review  the  alleged  errors 
of  the  district  court.  That  court  must  first  have  the  oppor- 
tunity to  review  the  errors  complained  of,  which  must  be 
assigned  in  the  motion  for  a  new  trial  before  the  party  com- 
plaining can  bring  the  case  here  for  review.  And  when  this 
is  done,  this  court  will  only  consider  such  alleged  errors  of 
the  district  court  as  are  set  forth  in  the  motion  for  a  new 
trial:  1  Nebraska,  398,  and  numerous  cases  there  cited. 


44  WILSON  v.  O'BRIEN.  [Sup.  Ct. 

Opinion  of  the  Court — Kingman,  J. 

We  have,  however,  in  this  case  looked  carefully  into  the 
record  and  considered  the  errors  alleged,  and  are  fully  sat- 
isfied that  the  rulings  of  the  district  court  were  correct,  and 
that  there  is  no  error  in  the  record ;  that  the  judgment  of 
the  district  court,  on  the  merits  of  the  case,  was  right,  and 
that  the  judgment  ought  to  be  affirmed :  Drake  on  Attach- 
ments, 381,  and  cases  there  cited. 

Judgment  affirmed. 


REPORTS  OF  CASES 


DETERMINED   IN 


THE   SUPREME   COURT 

OF 

WYOMING  TERRITORY. 
JULY  TERM,   1872. 


GREAT  WESTERN  INSURANCE  COMPANY  v. 
PIERCE. 

COUNTER-CLAIM. — A  counter-claim  set  up  by  the  defendants  in  an  action 
can  only  be  maintained  where  it  exists  in  favor  of  all  the  defend- 
ants against  the  plaintiffs,  and  each  and  every  of  them. 

IDEM. — "  Where  a  note  is  on  its  face  joint  or  joint  and  several,  it  is  con- 
ceived that  evidence  to  show  that  one  maker  is  surety  for  the  other 
is  inadmissible  at  law  if  the  question  arises  between  the  creditor 
and  the  surety;  but  evidence  to  that  effect  has  been  received  when 
the  question  arises  between  the  principal  debtor  and  the  sureties." 

IDEM. — "  As  between  the  makers  of  a  promissory  note  and  the  holders, 
all  are  alike  liable,  all  are  principals;  but  as  between  themselves, 
their  rights  depend  upon  other  questions." 

IDEM. — A  counter-claim  cannot  be  maintained  by  one  alone  of  several 
defendants,  who  are  all  joint  and  several  makers  of  a  promissory 
note,  against  the  holder  and  payee,  although  such  defendant  offer 
to  prove  that  he  alone  is  the  principal,  and  the  other  defendants 
simply  sureties. 

VERDICT — FORM  OF. — Where  a  verdict  is  returned  in  writing  by  a  jury, 
it  should  at  least  show  clearly  upon  its  face  precisely  what  the  jury 
intended  to  find.  It  should  state  for  which  of  the  parties  to  the 
action  the  jury  finds,  and  also  against  which  one,  where  there  are 
more  than  one  of  either  plaintiffs  or  defendants. 

IDEM. — A  verdict  in  the  following  form  held  to  be  insufficient:  "We, 
the  jury,  find  a  verdict  for  II.  A.  Pierce  for  the  sum  of  one  thou- 
sand one  hundred  and  fifty-eight  dollars  and  five  cents.  A.  P.  Post, 
Foreman." 

45 


46  GREAT  WESTERN  INS.  Co.  v.  PIERCE.  [Sup.  Ct. 

Argument  for  Defendants. 
ERROR  to  the  First  District  Court  for  Laramie  County. 

A  full  statement  of  this  case  is  contained  in  the  following 
opinion  of  the  court. 

This  was  an  action  brought  by  the  Great  Western  Insur- 
ance Co.  v.  H.  A.  Pierce  and  L.  Murrin  £  Co.,  on  a  certain 
promissory  note,  in  the  following  form  : 


$.97.  Cheyenne,  Feb.  16,  1871.  Sixty  days  after 
date  we,  or  either  of  us,  promise  to  pay  Great  Western  In- 
surance Company  of  Chicago,  Ills.,  or  order,  five  hundred 
and  thirty-eight  Ty7  dollars,  value  received,  with  ten  per 
cent,  interest  from  this  date,  payable  at  the  banking  house 
of  Posey  S.  Wilson,  at  Cheyenne,  W.  T.  H.  A.  Pierce  and 
L.  Murrin  &  Co." 

The  above  note  not  having  been  paid  at  maturity,  suit  was 
brought  against  the  makers  thereof  to  the  July  term  of  the 
said  court,  1871. 

D.  McLaughlin,  for  plaintiff,  filed  his  petition  setting  out 
as  the  cause  of  action  the  foregoing  note. 

Messrs.  Johnson  $•  Steel,  for  defendants,  filed  an  answer 
to  plaintiff's  petition,  in  which  they  admit  the  execution  of 
the  note,  but  allege  that  L.  Murrin  &  Co.  signed  the  said 
note  as  sureties ;  and  that  H.  A.  Pierce  alone,  defendant, 
was  the  principal.  They  deny  that  they  are  indebted  to 
the  plaintiff  in  the  amount  of  the  note,  or  in  any  other 
amount.  They  further  allege  that  the  plaintiff  is  indebted 
to  defendant  Pierce  for  services  rendered  and  other  matters, 
as  set  forth  in  a  schedule  thereto  attached  and  made  a  part 
of  defendant's  answer  in  the  sum  of  eleven  hundred  and 
fifty-eight  dollars  and  five  cents.  To  this  answer  the 
plaintiff  by  his  counsel  filed  a  general  demurrer,  which 
after  argument  was  overruled.  Plaintiff  then  filed  an  ap- 
plication for  continuance  upon  the  ground  of  absent  wit- 
nesses, which  were  material  on  account  of  the  counter- 
claim set  up  by  defendants.  This  application  was  refused. 


July,  1872.]  GREAT  WESTERN  INS.  Co.  v.  PIERCE.          47 

Argument  for  Defendants. 

Plaintiff  then  filed  a  replication  to  defendants'  counter- 
claim, denying  each  and  every  material  allegation  of  the 
same,  and  denies  that  plaintiff  owes  defendant  said  sum  of 
ten  hundred  seventy-five  dollars  and  five  cents,  or  any  other 
sum  whatever,  and  demands  judgment  as  prayed  for  in  its 
complaint.  The  case  being  ordered  to  trial  by  the  court, 
Chief  Justice  J.  H.  Howe  presiding,  upon  the  pleadings  as 
they  then  stood. 

The  plaintiff,  by  its  attorney,  moved  the  court  to  dismiss 
the  cause  as  to  plaintiff's  claim,  and  it  is  so  ordered  by  the 
court  to  be  dismissed,  and  the  privilege  given  to  defendants 
to  prosecute  their  counter-claim.  A  jury  was  called  and 
sworn,  when  defendants  submitted  the  schedule  of  items 
making  up  the  amount,  viz.,  one  thousand  and  seventy-five 
dollars  and  five  cents  claimed  by  H.  A.  Pierce,  one  of  the 
defendants,  against  the  plaintiff.  The  jury  retired  to  their 
room,  and  returned  a  verdict  in  the  following  form  : 

"  We,  the  jury,  find  a  verdict  for  H.  A.  Pierce  for  the  sum 
of  one  thousand  one  hundred  and  fifty-eight  dollars  and  five 
cents.  ($1158.05.)  A.  B.  Post,  foreman." 

The  plaintiff,  by  its  attorney,  moved  the  court  to  set  aside 
the  verdict  of  the  jury  in  the  above  entitled  cause,  for  the 
following  reasons:  1.  Because  the  court  erred  in  overruling 
the  demurrer  of  plaintiff  to  defendants'  answer :  2.  Because 
the  verdict  is  against  law ;  that  it  is  irregular  and  uncertain, 
and  is  not  given  in  favor  of  or  against  either  the  plaintiff  or 
defendants. 

The  plaintiff,  by  its  attorney,  moved  the  court  also  to  grant 
a  new  trial,  both  of  which  motions  were  refused. 

In  the  answer  of  defendant  to  plaintiffs'  petition  they  set 
out,  although  the  note  upon  which  the  suit  is  brought  is 
in  form  a  joint  and  several  note,  that  it  was  understood 
by  all  the  parties  to  the  transaction  that  H.  A.  Pierce  was 
the  real  maker  of  the  note,  and  that  L.  Murrin  &  Co.  signed 
it  as  sureties,  and  hence,  H.  A.  Pierce  had  a  right  to  pre- 
sent his  schedule  as  a  counter-claim,  a  set-off  to  the  note, 
and  if  that  is  so,  then  the  court  below  did  right  in  overrul- 


48  , GREAT  WESTERN  INS.  Co.  u.  PIERCE.   [Sup.  Ct. 

:Opinion  of  the  Court — Fisher,  C.  J. 

ing  the  plaintiff's  demurrer  to  defendants'  answer ;  on  the 
other  hand,  however,  if  the  note  in  question  was  really  as 
its  face  represents  it  to  be,  a  joint  and  several  note,  that 
then  no  matter  whether  the  items  in  the  schedule  presented 
by  H.  A.  Pierce  were  correct  or  not,  that  they  could  not  be 
set  up  as  a  counter-claim  in  a  suit  brought  on  the  note, 
from  the  fact  that  a  counter-claim  must  partake  of  the 
nature  of  the  action  against  which  it  is  set  up,  and  more- 
over must  be  of  such  a  character  that  the  defendant  who 
raised  it  could  maintain  an  action  on  it  against  the  plaintiff. 
And  again,  it  was  claimed  by  the  plaintiff  that  the  only  evi- 
dence by  which  it  can  be  shown  that  one  or  more  of  the 
signers  to  a  joint  and  several  note  signed  it  as  sureties, 
must  be  made  to  appear  by  the  instrument  itself.  In  sup- 
port of  these  positions  various  authorities  were  cited,  and 
the  defendants,  in  support  of  their  view  of  the  case,  referred 
us  to  several  authorities,  none  of  which,  however,  satisfy  us 
of  the  correctness  of  either  of  their  positions. 

D.  McLaughlin,  for  plaintiff  in  error. 

E.  P.  Johnson  and  Thomas  J.  Street,  for  defendants  in 
error. 

By  the  Court,  FISHER,  C.  J.  We  are  of  opinion  that  the 
court  below  erred  in  overruling  the  plaintiff's  demurrer  to 
defendants'  answer,  for  the  following  reasons :  This  action 
was  brought  by  plaintiff  against  defendants  H.  A.  Pierce 
and  L.  Murrin  &  Co.,  who  were  the  makers  of  a  joint  and 
several  note,  and  while  Pierce  may  have  been  the  principal 
and  Murrin  &  Co.  sureties,  this  fact,  if  it  be  a  fact,  might 
be  shown  in  a  suit  brought  by  Pierce  against  L.  Murrin  & 
Co.  for  contribution,  had  Pierce  paid  the  note  at  maturity, 
or  at  any  other  time ;  yet  we  are  very  clearly  of  the  opinion 
that  it  would  not  be  plead  in  an  action  brought  by  the  payee 
against  the  makers  of  the  note.  We  are  sustained  fully  in 
this  opinion  by  referring  to  Byles  on  Bills,  68,  where  the 
auditor  uses  this  language  : 


July,  1872. J  GREAT  WESTERN  INS.  Co.  v.  PIERCE.          49 

Opinion  of  the  Court — Fisher,  C.  J. 

"  Where  a  note  is  on  its  face  joint,  or  joint  and  several, 
it  is  conceived  that  evidence  to  show  that  one  maker  is 
surety  for  the  other  is  inadmissible  at  law,  if  the  question 
arise  between  the  creditor  and  the  surety ;  but  evidence  to 
that  effect  has  been  received  where  the  question  arises  be- 
tween the  principal  debtor  and  the  sureties.  The  same 
doctrine  is  maintained  in  Robinson  v.  Lyle,  10  Barb.  512 ; 
the  syllabus  of  that  case  is  as  follows :  As  between  the 
maker  of  a  promissory  note  and  the  holder,  all  are  alike  lia- 
ble, all  are  principals ,  but  as  between  themselves,  their 
rights  depend  upon  other  questions  which  are  the  proper 
subjects  of  parol  evidence."  This  doctrine  prevails  to  such 
an  extent  that  we  are  led  to  wonder  that  it  should  be  ques- 
tioned in  any  case.  If  then  the  signers  of  the  notes  in 
question  are  all  to  be  regarded  as  makers,  the  next  questions 
that  arise  are,  can  a  counter-claim  be  set  up?  and,  if  so, 
by  whom  can  it  be  interposed,  and  what  must  be  its  char- 
acter ?  If  all  the  signers  to  the  note  are  to  be  considered 
as  the  makers  of  the  note,  then  a  counter-claim  or  set-off 
must  be  such  a  claim  as  that  the  defendants  in  the  action 
could  maintain  an  action  against  the  plaintiff ;  because  the 
rule  of  law  is,  that  the  counter-claim  must  be  something 
which  is  due  to  the  defendant,  and  which  the  plaintiff  is 
liable  to  be  sued  upon  by  defendant ;  and,  moreover,  it 
must  be  a  claim  arising  out  of  or  partaking  of  the  na- 
ture of  the  plaintiff's  cause  of  action.  Now,  if  in  this  case 
the  plaintiff's  cause  of  action  arises  upon  the  note  of  de- 
fendants, it  being  a  joint  and  several  note,  and  if  the  law 
will  not  permit  parol  evidence  to  be  given  to  contradict  or 
vary  the  face  of  the  note,  then  the  counter-claim  or  set-off 
must  be  the  same  debt  due  by  the  plaintiff  to  the  defend- 
ant, and  not  to  one  of  the  defendants  only. 

This  term  counter-claim,  according  to  Nash,  is  a  sort  of 
a  novel  term  interpolated  into  our  civil  jurisprudence  :  it  is 
not  to  be  found  either  in  our  law  or  general  dictionaries ; 
it  is  a  kind  of  mongrel  or  compound  word  ;  the  term  u  coun- 
ter "  is  defined  to  be  contrary  to,  contrary  way,  opposition 
4 


50  GREAT  WESTERN  INS.  Co.  v.  PIERCE.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

to,  etc. ;  the  word  claim  is  defined  to  be  the  demand  of  any- 
thing that  is  in  possession  of  another,  to  demand,  to  require, 
etc.,  but  in  its  legal  use  it  has  been  understood  in  a  some- 
what enlarged  sense,  and  that  is  the  right  to  demand  of 
another ;  thus  we  say  we  have  a  claim  against  another  when 
in  fact  we  only  mean  that  we  have  a  right  to  make  such 
claim  or  demand.  If,  then,  the  defendant  set  up  a  counter- 
claim it  must  be  such  an  one  as  they  would  have  had  a  right 
to  sue  upon. 

Now,  in  this  case  had  the  defendants,  that  is,  we  mean 
the  names  of  the  persons  in  the  record  as  defendants,  such 
a  claim  as  they  could  have  maintained  an  action  against  the 
plaintiff  in  this  suit.  Clearly  they  had  not.  If  they  had 
not  then,  how  could  they  set  up  the  claim  of  one  of  the 
defendants  against  that  of  the  plaintiff  in  this  action?  If 
all  the  defendants  had  been  interested  in  the  account  set 
out  in  the  schedule  introduced-  by  one  of  the  defendants, 
they  might  have  plead  it  by  way  of  set-off-;  but  for  the  court 
to  allow  one  of  the  defendants  to  introduce  a  book  account 
of  his  own  as  a  counter-claim  to  defeat  an  action  upon  a 
joint  and  several  promissory  note  given  by  all  the  defend- 
ants is  an  anomaly  in  jurisprudence. 

2.  The  second  point  to  be  considered  is  the  form  of  the 
verdict,  and  if  there  was  nothing  in  what  has  already  been 
said,  there  is  enough  in  this  not  only  to  justify  us  in  setting 
aside  the  entire  proceedings  in  this  case,  but  to  excite  our 
wonder  "how  any  court  should  have  hesitated  to  grant  a  new 
trial.  Revelation  tells  us  of  a  time  when  "the  earth  was 
without  form  and  void,  and  darkness  was  upon  the  face  of 
the  deep."  This  verdict  is  in  about  the  same  condition.  It 
is  in  fact  nothing.  It  is  neither  for  plaintiff  nor  defendant. 

The  Great  Western  Insurance  Company,  plaintiff,  bring  a 
suit  against  H.  A.  Pierce  and  L.  Murrin  &  Co.,  defendants, 
and  the  jury  find  for  H.  A.  Pierce  the  sum  of  eleven  hun- 
dred and  fifty-eight  dollars  and  five  cents.  Plow  do  we  know 
whether  it  is  for  the  same  H.  A.  Pierce,  as  one  of  the  de- 
fendants, or  not?  It  does  not  even  say  that  it  is  for  H.A. 


July,  1872.]  WILSON  v.  ROGERS.  51 


Statement  of  Facts. 


Pierce,  defendant ;  and  if  it  did,  it  would  not  be  in  favor  of 
the  defendants  in  this  action. 

A  verdict  in  a  case  of  this  character  should  be  in  such 
form  that  if  the  question  were  asked  by  the  clerk,  for  whom 
they  had  found,  the  jury  should  be  able  to  answer  either  for 
plaintiff  or  defendant;  but  this  one  does  not  inform  us 
whether  the  verdict  is  for  a  party  to  the  record  or  not.  It 
is  true  that  the  name  of  H.  A.  Pierce  is  in  the  record,  but 
is  not  there  as  defendant  in  this  action.  It  is  presumed 
that  the  jury  referred  to  the  same  Pierce  who  is  one  of  the 
defendants,  but  there  is  no  certainty  about  it.  Now,  with- 
out elaborating  this  case  any  further  in  the  consideration  of 
either  of  the  points,  it  is  sufficient  to  say  one  would  be  fatal 
to  the  verdict. 

The  whole  proceedings  are  therefore  set  aside. 


WILSON  v.  ROGERS. 

NATIONAL  BANKS — POWERS  OF  AGENTS. — Money  paid  to  the  cashier  of 
a  bank  for  the  use  of  and  benefit  of  the  bank,  is  payment  to  the 
bank  itself.  If  such  cashier  misapply  the  funds  so  received,  the 
bank,  as  his  principal,  can  maintain  an  action  against  him,  but*not 
the  person  paying  the  money. 

IDEM. — If  the  latter  suffer  injury  by  reason  of  such  misapplication,  his 
remedy  lies  against  the  bank  and  not  against  its  officer  or  servant. 

IDEM. — An  agent  receiving  money  from  a  third  person  for  his  principal, 
if  he  acted  within  the  scope  of  his  authority,  and  has  the  right  to 
receive  such  payment,  is  not  responsible  to  the  third  "person;  pay- 
ment to  the  agent  is  payment  to  the  principal,  who  is  responsible 
for  the  default  of  the  agent. 

ERROR  to  the  First  District  Court,  for  Laramie  County. 

The  following  is  the  statement  of  the  case,  written  by  the 
judge  who  delivered  the  opinion  of  the  court: 

An  appeal  from  the  district  court,  first  judicial  district, 
March  term,  1872.  This  was  an  action  by  the  plaintiff  be- 
low to  recover  damages  of  the  defendant  in  the  sum  of  four 
thousand  dollars.  The  amended  petition  alleges  that  the 


62  WILSON  v.  ROGERS.  [Sup.  Ct. 


Statement  of  Facts. 


plaintiff  on  the  twenty-first  day  of  February,  1871,  deliv- 
ered to  the  defendant  the  sura  of  five  thousand  dollars,  in 
consideration  of  which  the  defendant  promised  the  plaintiff 
to  pay  the  said  five  thousand  dollars  into  the  First  National 
Bank  of  Cheyenne,  a  bank  incorporated  under  the  laws  of 
the  United  States,  in  payment  of  fifty  per  cent,  of  one  hun- 
dred shares  of  the  capital  stock  of  said  banking  association, 
for  which  the  said  plaintiff  had  theretofore  subscribed.  That 
the  defendant  in  violation  of  his  undertaking  did  not  pay 
the  said  sum,  nor  any  part  thereof,  to  said  bank  in  payment 
of  fifty  per  cent,  of  one  hundred  shares  of  capital  stock  for 
which  plaintiff  had  subscribed,  to  the  damage  of  the  plaintiff 
in  the  sum  of  four  thousand  dollars.  The  defendant's  an- 
swer was  a  general  denial. 

On  the  issue  thus  made  up  the  case  was  tried  by  a  jury 
in  the  court  below,  and  verdict  rendered  for  defendant. 
Motion  was  made  by  plaintiff  to  set  aside  verdict,  and  grant 
a  new  trial  which  was  overruled  by  the  court,  to  which 
ruling  the  plaintiff  excepted.  The  reasons  alleged  for  a 
new  trial  are  the  same  as  the  first  two  assignments  of  error 
in  this  court,  which  assignments  of  error  by  appellant  are 
as- follows,  to  wit:  1.  That  the  court  below  erred  in  reject- 
ing the  evidence  offered  to  be  given  to  the  jury  to  restrain 
the  issues  upon  his  part ;  2.  That  the  court  below  erred  in 
its  instructions  as  given  to  the  jury  upon  the  trial  of  the 
cause  ;  3.  That  the  court  erred  in  overruling  the  appellant's 
motion  for  a  new  trial. 

The  only  instructions  which  appear  from  the  record  to 
have  been  given  to  the  jury  in  this  case,  are  as  follows : 
"  That  the  verdict  under  the  evidence,  as  given  to  them, 
must  be  for  the  defendant,  as  there  has  been  no  liability 
shown  to  rest  on  him." 

These  instructions  were  excepted  to  by  plaintiff's  counsel 
in  the  court  below.  The  only  witness  examined  in  the 
district  court  was  Posey  S.  Wilson,  the  plaintiff,  who 
testified  substantially  as  follows  :  "  That  he  was  one  of  the 
incorporators  and  directors  of  the  First  National  Bank  of 


July,  1872.]  WILSON  v.  ROGERS.  53 


Statement  of  Facts. 


Cheyenne,  which  was  organized  on  the  tenth  day  of  January, 
1871 ;  that  he,  the  plaintiff,  in  December,  1870,  subscribed 
for  ten  thousand  (10,000)  dollars  of  the  capital  stock  of  said 
bank,  and  that  the  defendant,  Rogers,  subscribed  for  twenty- 
five  thousand  (25,000)  dollars  of  the  capital  stock  of  said 
bank ;  and  that  said  Rogers,  on  the  tenth  day  of  January, 
1871,  was  elected  cashier  and  one  of  the  directors  of  said 
bank,  at  which  time  the  organization  of  the  bank  was  com- 
pleted, and  the  first  assessment  of  fifty  per  cent,  on  the  cap- 
ital stock  made.  That  he,  Wilson,  paid  his  assessment  of 
five  thousand  dollars  by  a  check  drawn  on  himself  in  favor 
of  the  First  National  Bank  of  Cheyenne,  which  check  he, 
Wilson,  paid  to  Rogers,  the  defendant,  as  cashier  of  said 
National  Bank.  That  he,  Wilson,  received  a  receipt  for 
said  amount  of  money  from  H.  J.  Rogers,  cashier  of  said 
bank,  per  Hoyt,  assistant  cashier,  who  was  also  clerk  of  Rog- 
ers &  Co.  Hoyt  was  elected  assistant  cashier  at  the  same 
meeting  in  which  Rogers  was  elected  cashier,  and  all  his  acts 
were  ratified  by  the  board  of  directors." 

The  check  and  receipt  referred  to  are  as  follows : 

"Cheyenne,  W.  T.,  Jan.  16,  1871.  Posey  S.  Wilson, 
banker,  pay  to  First  National  Bank,  Cheyenne,  five  thousand 
dollars  (5,000).  P.  S.  Wilson,  indorsed  as  follows :  H.  J. 
Rogers,  cashier,  per  Wild." 

"  No.  14.  Cheyenne,  Wyoming  Territory,  January  16, 
1871.  Received  of  P.  S.  Wilson  five  thousand  dollars,  to 
apply  on  capital .  stock  First  National  Bank,  being  fifty  per 
cent,  of  one  hundred  shares.  $5000.  IT.  J.  Rogers,  Cash. 
Hoyt." 

The  plaintiff  offered  to  show  that  defendant  received  the 
money,  being  the  said  five  thousand  dollars,  from  plaintiff, 
for  the  purpose  of  paying  it  into  the  First  National  Bank  in 
payment  of  the  first  assessment  on  the  stock  subscribed  for 
by  the  plaintiff,  and  that  defendant  whollv  failed  to  appro- 
priate the  money  aforesaid  to  that  purpose,  but  instead  thereof, 


54  WILSON  v.  ROGERS.  [Sup.  Ct. 

Argument. for  Appellant. 

directed  and  appropriated  it  to  the  payment  of  his  own  debts 
and  the  debts  of  the  banking  firm  of  Rogers  &  Co.,  of  which 
he  was  a  member ;  and  thereby  and  by  reason  thereof  the 
plaintiff  was  damaged  in  the  sum  claimed,  to  wit.,  the  sum 
of  four  thousand  dollars,  and  for  that  purpose  witness  was 
asked  the  following  questions,  to  each  of  which  the  defend- 
ant objected,  which  objections  were  sustained  by  the  court 
and  the  evidence  rejected.  The  plaintiff  in  each  case  except- 
ing to  the  rulings  of  the  court : 

First  question. — State  whether  or  not  defendant  paid  the 
First  National  Bank  of  Cheyenne,  as  was  intended,  in  pay- 
ment of  the  assessment  due  on  your  subscription  to  the  cap- 
ital stock? 

Second  question. — At  the  time  you  paid  this  five  thousand 
dollars  to  Mr.  Rogers  to  be  applied  to  the  payment  of  your 
subscription  to  the  stock  of  the  bank,  did  you  have  any 
knowledge  this  money  was  to  be  applied  to  any  other  pur- 
pose than  the  use  for  which  it  was  paid  ? 

Third  question. — Did  you  sustain  any  damage  in  conse- 
quence of  the  failure  of  defendant  to  pay  the  five  thousand 
dollars  into  the  First  National  Bank  of  Cheyenne  ;  and  if  so, 
in  what  amount  ? 

Corlett  and  Johnson,  for  appellant,  contended : 

I.  That  the  evidence  offered  on  the  part  of  appellant  and 
rejected  by  the  court,  tended  directly  and  distinctly  to  prove 
and  maintain  on  his  part  the  issues  as  made  up  by  the 
pleadings  in  the  cause  :  citing  1  Greenl.  on  Ev.  sees.  51  to  55. 

II.  An   agent   is  personally  liable  if   he  transcends   his 
agency  or  departs  from  its  provisions,  or  if  he  conducts  him- 
self so  as  to  render  his  principal  inaccessible  or  irresponsi- 
ble, or  if  he  acts  in  bad  faith :  1  Parsons  on  Con.  64  to  74, 
and  the  cases  there  cited ;  11  Wend.  Teter  v.  Heath,  479 ; 
Story  on  Agency,  335  to  408 ;  2  Kent,  630. 

III.  The  appellee's  personal  responsibility  is  fixed  by  the 
fifty-third  section  of  the  national  banking  act,  to  which  ref- 
erence is  made :  13  Stat.  at  Large,  116. 


July,  1872.]  WILSON  v.  ROGERS.  55 

Opinion  of  the  Court — Carey,  J. 

W.  R.  Steele,  for  appellee,  urged  that  an  agent  receiving 
money  from  a  third  person  for  his  principal,  if  he  acted 
within  the  scope  of  his  authority  and  has  the  right  to  re- 
ceive such  payment,  is  not  responsible  to  the  third  person ; 
payment  to  the  agent  is  payment  to  the  principal,  who  is 
responsible  for  the  default  of  the  agent.  If  the  agent  fail 
to  pay  over  such  money,  lie  is  responsible  to  his  principal 
to  whom  he  owes  the  duty  and  to  no  one  else,  and  cited :  1 
Parsons  on  Con.  79  (note  "  E  ")  ;  1  Bouv.  Agency,  102 ;  2 
Greenl.  sec.  68 ;  2  Comst.  2  N.  Y.  126 ;  7  Ohio  S.  231 ;  12 
Barb.  456  ;  10  Id.  663  ;  2  Denio,  115;  Paley's  Agency,  388; 
Story  on  Agency,  216  to  310  ;  Abbott's  Corp.  550 ;  8  Wall. 
498. 

By  the  Court,  CAREY,  J.  The  first  error  assigned  in  this 
case  is  that  the  district  court  erred  in  rejecting  the  evi- 
dence offered  to  the  jury  to  sustain  the  issues  on  the  plain- 
tiff's part.  Though  it  does  not  appear  in  the  record  upon 
what  grounds  the  objections  were  made  to  said  evidence  by 
the  defendant,  we  are  of  the  opinion  that  the  court  was 
right  in  refusing  to  allow  the  questions  to  be  answered.  In 
the  asking  of  each  of  the  questions  it  is  assumed  it  had 
been  proved  that  H.  J.  Rogers,  the  defendant,  had  received 
money  from  the  plaintiff,  to  be  paid  over  to  the  First  Na- 
tional Bank  of  Cheyenne,  as  payment  of  an  assessment  on 
a  certain  amount  of  capital  stock  of  the  said  bank,  for 
which  plaintiff  had  theretofore  subscribed. 

The  testimony  of  Mr.  Wilson,  and  the  check  and  receipt 
offered  in  evidence,  show  that  Mr.  Wilson  paid  the  instal- 
ment on  the  capital  stock  of  said  bank,  not  to  II.  J.  Rogers, 
as  his  agent  or  bailee,  but  to  the  said  bank,  as  directly  as 
money  can  be  paid  to  any  corporation.  The  check  given 
was  drawn  in  favor  of  said  bank,  and  was  collected  by  said 
bank  in  the  usual  manner  of  making  such  collections,  and 
is  indorsed,  not  by  II.  J.  Rogers  as  a  principal,  but  by  H.  J. 
Rogers  as  cashier  of  said  bank,  per  Wild.  Nowhere  in 
ihe  evidence  does  it  appear  that  Mr.  Wilson  made  Mr. 


56  WILSON  v.  ROGERS.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

Rogers  his  agent  or  bailee,  but  in  his  payment  of  assess- 
ment on  the  capital  stock  of  said  bank  that  he  transacted 
his  business  directly  with  said  bank  in  payment  of  said 
money  to  an  officer  of  the  bank.  The  bank,  by  its  officers, 
had  therefore  made  an  assessment  on  its  capital  stock,  and 
Mr.  Wilson,  being  a  stockholder,  paid  the  amount  due  on 
his  assessment  to  said  bank,  and  if  the  latter,  through  any 
of  its  officers,  failed  to  appropriate  the  money  to  the  pur- 
pose for  which  it  was  intended,  and  Wilson  was  damaged, 
the  remedy  is  against  the  bank.  It  is  true,  as  contended 
by  counsel  for  appellant,  that  if  an  agent  transcends  his 
agency,  or  departs  from  its  provisions,  or  conducts  himself 
so  as  to  render  his~  principal  inaccessible  or  irresponsible, 
or  if  he  acts  in  bad  faith,  he  makes  himself  personally  lia- 
ble :  Parsons  on  Cont.  64. 

We  cannot  see  how  this  principle  can  apply  in  this  case. 
The  petition  upon  which  this  cause  was  tried  does  not  al- 
lege that  the  defendant  was  the  agent  of  any  one,  but  that 
he  as  principal  for  consideration  promised  and  undertook  to 
do  what  is  therein  alleged.  While  the  proof  offered  shows 
that  when  he  received  said  sum  of  five  thousand  dollars,  he 
received  it  as  cashier  of  the  First  National  Bank  of  Chey- 
enne. It  is  a  well-established  principle  that  the  proofs 
must  correspond  with  the  allegations  in  the  petition.  In 
this  case  they  are  wholly  at  random  with  its  allegations. 
Again,  it  is  contended  that  the  appellee's  personal  respon- 
sibility is  fixed  by  the  fifty-third  section  of  the  national 
banking  act,  thirteenth  volume  United  States  statutes, 
page  116.  This  section  provides  that  if  the  directors  of 
any  association  (national  banks)  shall  knowingly  violate  or 
knowingly  permit  any  of  the  officers,  agents  or  servants  of 
the  association  to  violate  any  of  the  provisions  of  the  act,  *  ' 
every  director  who  participated  in  or  assented  to  the  same 
shall  be  held  liable  in  his  personal  and  individual  capacity 
for  all  damages  which  the  association,  its  shareholders  or  any 
other  person  shall  have  sustained  in  consequence  of  such 
violation. 


July,  1872.]  HORTON  v.  PEACOCK.  57 


Statement  of  Facts. 


We  fail  to  see  how  this  provision  of  the  banking  laws  of 
the  United  States  can  be  made  applicable  in  this  case.  It 
is  not  alleged  in  the  petition  upon  which  the  case  was  tried : 
1.  That  the  directors  of  the  First  National  Bank  of  Chey- 
enne violated  or  permitted  to  be  violated  any  of  the  provi- 
sions of  the  banking  law ;  or,  2.  That  H.  J.  Rogers,  the  ap- 
pellee, was  a  director  in  said  bank,  or  that  he  participated 
or  assented  to  the  violation  of  any  of  the  provisions  of  the 
said  law,  all  of  which  requisites  would  be  necessary  to  sus- 
tain an  action  under  the  section  named. 

We  are  of  the  opinion  that  the  district  court,  under  the 
evidence,  was  correct  in  its  instructions  to  the  jury,  and  very 
properly  overruled  the  motion  to  set  aside  the  verdict  of  the 
jury  and  grant  a  new  trial. 

Judgment  affirmed. 


HORTON  v.  PEACOCK. 

PRACTICE — APPEAL,  WRIT  OF  ERHOR. — Where  a  code  of  civil  procedure 
allows  a  party  to  carry  proceedings  for  review  to  the  supreme  court, 
either  by  appeal  or  writ  of  error,  he  must  decide  upon  which  course 
he  will  rely.  After  having  attempted  to  reach  the  supreme  court 
by  appeal,  and  having  failed  therein  by  reason  of  not  perfecting  the 
same  in  filing  the  undertaking  required  by  statute,  it  is  then  too  late 
for  him  to  resort  to  another  remedy,  and  to  attempt  to  have  the 
proceedings  of  the  district  court  reviewed  by  means  of  a  writ  of 
error  or  petition  in  error. 

ERROU  to  the  District  Court  for  Laramie  County. 

This  was  an  action  brought  in  the  district  court  of  Lara- 
mie county  to  the  March  term,  A.  D.  1870,  at  which  term  a 
verdict  was  returned  in  favor  of  the  plaintiff  against  II.  B. 
Horton  for  the  sum  of  three  thousand  dollars.  The  defend- 
ant reserved  certain  exceptions  and  gave  notice  of  an  appeal 
to  this  court.  A  transcript  of  the  proceedings  was  certified 
to  this  court  in  due  form,  the  defendant  however  having 
failed  to  enter  into  an  undertaking  as  required  by  section  723 
of  the  code  of  civil  procedure  of  this  territory.  At  the 


58  HORTON  v.  PEACOCK.  [Sup.  Ct. 


Argument  for  Defendant. 


term  of  this  court  for  1871,  the  counsel  for  the  appellee 
moved  the  court  to  strike  off  the  appeal,  for  the  reason  that 
no  such  undertaking  had  been  filed ;  whereupon  the  court 
granted  the  said  motion,  and  not  only  struck  off  the  appeal 
but  directed  a  procedendo  to  the  court  below  directing  pro- 
ceedings to  cover  the  amount  of  the  judgment,  with  inter- 
est and  costs.  Application  was  then  made  by  the  appellant 
for  leave  to  file  a  petition  in  error,  which  after  argument  was 
granted,  with  the  understanding  not  that  this  action  was  to 
be  final,  but  to  be  a  question  for  consideration  at  the  next 
term  of  the  court.  The  case  coming  on  for  argument  at  the 
regular  term  of  the  court,  the  counsel  for  appellee  moved 
to  strike  off  the  appellant's  assignments  of  error,  and  after 
argument  by  counsel  the  majority  of  the  court  sustained  the 
motion. 

Thomas  J.  Street,  for  plaintiff  in  error,  cited  Laws  of  Wy- 
oming, title  24,  Code  of  Civ.  Pro.;  2  Am.  Rep.  718  ;  3  Id. 
339;  12  Wheat.  477;  13  Allen,  123,  128:  17  Ohio,  190;  97 
Mass.  452,  458 ;  53  Penn.  177  ;  7  Pet.  453,  482,  551 ;  7  Wall. 
321;  5  Gray,  482;  57  Barb.  491. 

E.  P.  Johnson  and  D.  MeLaughlin,  for  defendant  in  error, 
maintained : 

I.  That  the  cause  having  been  taken  to  the  supreme 
court  on  appeal,  it  has  been  passed  upon  in  that  court,  the 
dismissal  of  the  appeal  being  a  technical  affirmance  of  the 
judgment  of  the  court  below  ;  it  cannot  again  be  heard  on 
the  same  issues  involved.  There  are  two  ways  to  get  into 
the  supreme  court,  and  this  plaintiff  in  error  having  elected 
to  go  by  appeal,  cannot  now  be  permitted  to  come  up  the 
other  way :  1  Green.  86  ;  Hill,  on  New  Trials,  614,  615  ;  24 
Cal.  52  ;  15  Cal.  324  ;  1  111.  Digest,  25,  sec.  26 ;  Id.  26,  sec. 
47  :  Hill,  on  New  Trials,  590.  And  that  in  a  case  reported 
in  16  Cal.  207,  the  question  is  determined  in  the  following 
language  :  "  Dismissal  of  an  appeal  in  the  supreme  court 
for  want  of  prosecution  operates  as  an  affirmance  of  the 
judgment  below,  within  the  statute  relative  to  undertakings 


July,  1872.]  HORTON  v.  PEACOCK.  59 

Opinion  of  the  Court — Fisher,  C.  J. 

on  appeal,  unless  the  order  of  dismissal  be  vacated  during 
the  term. 

II.  The  record  in  this  case  shows  that  only  a  portion  of 
either  the  evidence  or  instructions  are  given.     Whereas,  to 
enable  the  court  to  pass  intelligently  upon  the  merits  of 
the  case,  all  the  instructions  show  affirmatively  it  is  so :  3 
Green,  246 ;  4  Id.  125,  468 ;  Nash's  Ohio  Dig.  56 ;  1  Neb. 
398;  43  111.  124;  46  Id.  112;  2  Barclay's  Dig.  395;  2  Nev. 
265 ;  1  111.  Dig.  247,  sec.  50 ;  2  Id.  196,  sees.  6,  10,  22,  23 ; 
Ohio  Dig.  121,  sec.  13;  Id.  122,  sec.  44. 

III.  The  foregoing  proposition  is  a  necessity,  were  it  not 
so  well  sustained  by  authorities,  from  the  fact  that  all  pre- 
sumptions are  in  favor  of  a  judgment  of  courts  of  general 
jurisdiction,  and  he  who  would  set  them  aside,  must  affirm- 
atively show  not  only  that  there  was  error,  but  that  he  is 
prejudiced  by  reason  of  the  occurrence ;  and  the  court  for 
correction  of  errors,  must  have  all  the  facts  of  the  case  be- 
fore it,  to  enable  it  to  see  whether  the  error  complained  of 
is  prejudicial,  and  unless  the  moving  party  does  make  a  full 
showing,   the   presumptions    will   be   against   him :    Nash's 
Ohio  PL  &  Pr.  689;  6  Iowa,  553;  1  Green.  74,  157,  165;  1 
Iowa,  116,  121;  1  111.  Dig.  183,  sec.  15;  8  Watts  &  Sergt. 
391;  5  Id.  188;  5  Kan.  311,  425;  4  Green.  84. 

By  the  Court,  FISHER,  C.  J.  (  KING  MAX,  Justice,  dissent- 
ing.) 1.  The  appellant  having  availed  himself  of  his  remedy 
by  appeal,  and  having  neglected  to  perfect  his  appeal  by 
filing  his  undertaking,  as  required  by  the  statute,  it  is  too 
late  for  him  to  fall  back,  and  avail  himself  of  the  advantages 
of  his  petition  in  error.  It  is  true  that  the  appellant  was 
deprived  of  his  opportunity  to  review  the  proceedings  in 
the  court  below,  but  that  was  owing  altogether  to  his  own 
want  of  diligence.  It  was  optional  with  the  defendant  to 
seek  his  remedy  either  by  an  appeal  or  by  petition  in  error. 
Me  chose  the  former  remedy,  which  lie  failed  to  perfect, 
and  having  so  failed,  it  is  too  late  now  to  abandon  the  ap- 
peal, and  seek  his  remedy  by  a  petition  in  error.  The  judg- 


60  HORTON  v.  PEACOCK.  [Sup.  Ct 

Opinion  of  the  Court — Fisher,  C.  J. 

ment  was  entered  in  the  district  court  in  April,  1871.  The 
statute  allows  thirty  days  in  which  to  perfect  his  appeal,  by 
filing  an  undertaking  as  provided  for,  and  if  in  that  time 
he  discovered  that  he  could  not  enter  the  undertaking  he 
might  have  prepared  and  presented  his  petition  in  error, 
and  in  this  may  have  placed  himself  in  such  a  position  as 
that  he  could  secure  his  proper  standing  in  court;  but  we 
cannot  conceive  the  right  to  pursue  one  remedy  until  he 
failed  in  it,  and  then  resort  to  another.  This  was  the  doc- 
trine of  the  supreme  court  of  Iowa  in  the  case  of  Davis  v. 
Alexander,  1  G.  Green,  86.  The  court  in  that  case  held 
that  "the  case  having  been  once  determined  in  the  supreme 
court  it  cannot  be  brought  up  again  by  writ  of  error."  By 
a  further  examination  of  the  case,  we  find : 

2.  That  the  former  writ  of  error  was  dismissed  for  want 
of  the  notice  required  by  the  law ;  that  the  writ  of  error 
had  been  sued  out.  The  court,  for  the  reason  that  the 
notice  had  not  been  given  dismissed  the  case,  and  awarded 
a  procedendo  to  the  court  below  to  carry  their  judgment 
into  effect;  this,  too,  without  going  into  an  examination  of 
the  errors  complained  of  in  the  petition  in  error,  so  that, 
although  the  case  in  the  supreme  court  of  Iowa  differs  from 
this  case  in  the  fact  that  there  had  been  a  former  writ  of 
error  sued  out,  while  in  this  case  an  appeal  was  the  remedy 
sought,  yet  in  neither  case  did  the  reviewing  court  examine 
the  case  on  its  merits. 

In  the  case  of  Brooks  v.  The  Town  of  Jacksonville,  1  Scam. 
568,  the  court  say  :  "  Where  the  appeal  is  dismissed  the 
court  will  not  permit  the  transcript  of  the  record  to  be  with- 
drawn for  the  purpose  of  bringing  a  writ  of  error."  Again, 
the  courts  have  held  that  the  dismissal  of  an  appeal  by  the 
supreme  courts  amounts  to  an  affirmance  of  the  judgment 
of  the  court  below.  This  was  held  by  the  supreme  court  of 
Illinois  in  the  case  of  McConnell  v.  Swails  ;  also  in  Suther- 
land v.  Phelps,  where  the  court  held  (2  Scam.  571),  that 
"the  dismissal  of  an  appeal  a  certiorari  is  equivalent  to  a 
regular  technical  affirmance  of  the  judgment  of  the  court 


July,  1872.]         DONNELLAN  v.  NICHOLLS.  61 


Statement  of  Facts. 


below,  so  as  to  entitle  a  party  to  claim  a  forfeiture  of  the 
bond,  and  have  his  action  therefor." 

In  the  case  at  bar  there  was  no  bond,  consequently  there 
could  not  be  judgment  taken  against  the  sureties  on  their 
undertaking,  but  we  apprehend  that  the  principle  will  apply 
to  the  appellant  in  this  case,  and  permit  the  appellee  to  have 
his  execution.  This  same  principle  is  recognized  as  the 
settled  policy  of  the  law  in  Hilliard  on  New  Trials,  p.  596, 
597,  614,  615,  the  author  citing:  McManusv.  Humes,  6  Iowa, 
159 ;  Brill  v.  Meek,  20  Miss.  358 ;  Hobson  v.  Doe,  4  Blackf.  487. 

We,  therefore,  are  clearly  of  the  opinion  that  the  defend- 
ant in  this  case,  having  attempted  to  avail  himself  of  the 
benefit  of  an  appeal,  and  having  neglected  to  enter  into  the 
undertaking,  as  required  by  the  statute,  and  having  had  his 
appeal  stricken  off  by  this  court,  the  judgment  in  the  court 
below  became  absolute  even  without  the  proeedendo ;  that  it 
is  too  late  now  for  him  to  apply  to  us  by  petition  in  error. 

The  motion  is  granted  and  the  case  dismissed. 


DONNELLAN,  TREASURER  OP  WYOMING  TERRITORY,  v. 
NICHOLLS  ET  AL.,  COMMISSIONERS  OF  LARAMIE  COUNTY. 

MANDAMUS— CONFLICT  OF  LAWS. — Where  statutes,  otherwise  of  equal 
validity,  conflict,  the  greater  force  should  be  given  to  the  one  tend- 
ing to  the  best  interests  of  the  commonwealth,  and  to  the  enforce- 
ment of  the  laws. 

IDEM. — Where  one  law  provides  that  no  moneys  shall  he  paid  out  of  the 
territorial  treasury,  unless  especially  appropriated  by  the  legisla- 
ture, and  another  law  provides  for  the  proper  custody  and  mainten- 
ance of  convicted  criminals,  but  no  appropriation  having  been  made 
for  the  purpose,  a  writ  of  mandamus  will  issue  to  compel  the  terri- 
torial auditor  to  audit  the  proper  account  for  the  same,  and  to  com- 
pel the  treasurer  of  the  territory  either  to  pay  such  account  when 
audited,  or  to  certify  that  there  are  no  funds  in  the  treasury  where- 
with to  pay  the  same. 

ERROR  to  the  First  Judicial  District  Court  for  Laramie 
County. 

On  the  third  day  of  April,  1872,  the  above-named  defend- 


62  DONNELLAN  V.  NlCHOLLS.  [Sup.  Ct. 


Statement  of  Facts. 


ants  in  error  filed  in  the  district  court  the  following  petition, 
duly  verified,  for  an  order  of  mandamus  against  the  above- 
named  plaintiff  in  error : 

"  To  the  honorable  district  court  within  and  for  said  Lar- 
amie  county,  in  said  judicial  district:  Your  petitioners 
respectfully  represent  and  state  to  the  court  that  they  con- 
stitute the  board  of  county  commissioners  for  said  Laramie 
county,  and  as  such  have  performed  the  duties  pertaining 
to  that  office  for  nearly  two  years.  That  as  such  county 
commissioners,  upon  proper  application  having  been  made 
to  them,  and  it  having  been  shown  to  them  that  the  sum  of 
four  hundred  and  eighty  dollars  was  required  to  transport 
prisoners  who  had  been  convicted  and  sentenced  at  the  ad- 
journed November  term,  A.  D.  1871,  of  the  district  court  of 
said  Laramie  county,  they  made  the  formal  application  re- 
quired under  the  law,  and  thereby  requested  the  governor 
to  approve  the  said  application  and  order  a  warrant  drawn 
on  the  treasury  for  said  sum ;  and  Herman  Glafcke,  the  then 
acting-governor,  wrote  his  approval  thereon,  and  requested 
the  auditor  of  Wyoming  territory  to  draw  the  warrant,  which 
the  auditor  refused  to  do.  Whereupon  your  petitioners,  at 
a  term  of  the  district  court  of  the  said  first  judicial  district, 
held  in  the  county  of  Albany,  brought  their  writ  of  manda- 
mus to  compel  the  said  auditor  to  draw  a  warrant  for  the 
amount  allowed  by  the  governor  as  hereinbefore  stated. 
That  thereupon  and  during  the  said  term  of  court,  and  prior 
to  the  making  of  this  petition,  the  said  court,  being  fully  ad- 
vised in  the  premises,  ordered  and  decreed  that  the  said 
auditor  should  make  out  the  said  warrant  for  the  said  sum 
of  four  hundred  and  eighty  dollars,  and  that  thereupon  your 
petitioners  procured  the  said  warrant  and  thereafter  pre- 
sented the  same  to  J.  W.  Donnellan  for  payment ;  but  said 
J.  W.  Donnellan  refused  to  recognize  the  said  warrant  so 
issued  as  aforesaid  as  a  legal  and  binding  obligation  on  the 
territory,  and  refused  to  pay  the  same  or  to  indorse  on  the 
warrant,  as  the  reason  for  such  refusal,  that  there  were  no 


July,  1872.]         DONNELLAN  y.  NICHOLLS.  63 


Statement  of  Facts. 


funds  in  the  treasury.  And  your  petitioners  further  state 
that  they  are  entirely  remediless  in  the  premises,  unless  it 
be  afforded  by  the  interposition  of  the  court,  and  they  there- 
fore pray  that  a  writ  of  mandamus  against  the  said  J.  W. 
Donnellan,  treasurer  of  the  territory  of  Wyoming,  be  grant- 
ed, and  that  he  be  commanded  to  pay  the  said  warrant  so 
issued  as  aforesaid,  or  indorse  upon  the  same  the  date  and 
time  of  its  presentment  and  the  reason  for  non-payment, 
and  that  such  other  orders  shall  be  made  in  the  premises  as 
shall  seem  proper.  J.  H.  Nicholls,  Chairman,  per  J.  W. 
Cook,  his  attorney." 

Whereupon  an  alternative  writ  of  mandamus  was  issued 
by  said  district  court  against  the  said  J.  W.  Donellan,  treas- 
urer as  aforesaid,  commanding  him  either  to  pay  said  war- 
rant forthwith  out  of  the  moneys  in  the  territorial  treasury, 
or  to  show  cause,  on  a  day  certain,  why  he  had  not  so  done. 

The  plaintiff  in  error  then  filed  the  following : 

"Answer  to  alternative  writ.  (Title  of  cause.)  And  the 
said  J.  W.  Donellan  now  comes  and  for  answer  to  the  alter- 
native writ  of  mandamus,  heretofore  issued  in  this  cause, 
says  that  the  relator  ought  not  to  have  his  peremptory  writ 
of  mandamus,  because  he  saith  that,  by  the  provisions  of  the 
twenty-third  chapter  of  the  laws  of  Wyoming  Territory,  en- 
titled an  act  to  organize  and  establish  the  territorial  treasury 
department,  approved  December  2,  1869,  he  is  prohibited 
from  doing  as  is  commanded  by  the  alternative  writ,  and  fur- 
ther he  saith  not.  J.  W.  Donellan." 

After  arguments  of  counsel  the  following  order  was  then 
entered  in  this  cause : 

"March  term,  1872.  Wednesday,  April  3,  1872.  The 
County  Commissioners  v.  J.  W.  Donellan.  This  cause,  com- 
ing on  to  be  heard  this  day,  the  defendant,  by  his  attorney, 
filed  his  answer,  and  after  argument  of  counsel,  it  is  ordered 
by  the  court  that  peremptory  mandamus  shall  issue,  to  which 
counsel  for  defendant  excepts.  J.  W.  Fisher,  Judge  First 
Judicial  District." 


64  DONNELLAN  V.  NlCHOLLS.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

The  plaintiff  in  error  then  filed  in  the  supreme  court  the 
following : 

"Petition  in  error  of  defendant,  J.  W.  Donellan.  And 
now  by  leave  of  a  judge  of  the  supreme  court  first  had  and 
obtained,  J.  W.  Donellan  for  cause  of  action  complains : 
That  heretofore,  to  wit,  on  the  third  day  of  April,  1872,  at 
a  term  of  the  district  court  in  and  for  the  county  of  Lara- 
mie,  the  said  J.  H.  Nicholls,  M.  E.  Post  and  Timothy  Dyer 
recovered  a  judgment  against  said  defendant  by  the  consid- 
eration of  said  court  in  a  certain  case  then  pending  in  said 
court,  wherein  the  said  J.  H.  Nicholls,  M.  E.  Post  and  Tim- 
othy Dyer  were  plaintiffs,  and  J.  W.  Donellan,  defendant, 
a  copy  of  the  records  and  proceedings  in  which  case  duly 
certified  is  hereto  attached,  marked  "A,"  and  made  part  of 
this  petition,  and  the  said  J.  W.  Donellan  avers  that  there 
is  error  in  said  record  and  proceedings  in  this,  to  wit :  That 
the  court  erred  in  granting  a  peremptory  mandamus  to  com- 
pel defendant  to  indorse  a  certain  territorial  warrant,  as  in 
said  petition  was  prayed  for.  The  said  J.  W.  Donellan  there- 
fore prays  that  the  said  judgment  may  be  reversed  and  said 
complainant  restored  to  all  things  he  has  lost  by  reason 
thereof.  E.  P.  Johnson,  attorney  for  complainant." 

E.  P.  Johnson,  for  plaintiff  in  error. 
/.  W.  Cook,  for  defendants  in  error. 

By  the  Court,  FISHER,  C.  J.  This  was  an  action  on  a 
petition  for  a  peremptory  mandamus  to  compel  the  respond- 
ent in  the  court  below,  who  was  the  treasurer  of  the  territory 
of  Wyoming,  to  indorse  a  warrant  drawn  by  J.  H.  Hayford, 
auditor  of  the  territory,  in  favor  of  the  petitioners,  who  were 
the  commissioners  of  Laramie  county.  The  money  to  be 
realized  on  the  warrant  was  for  the  purpose  of  indemnifying 
the  said  county  for  the  expenses  incurred  in  taking  prisoners 
to  the  house  of  correction  at  Detroit,  in  the  state  of  Michi- 
gan. 


July,  1872.]  DONNELLAN  V.  NlCHOLLS.  65 

Opinion  of  the  Court — Fisher,  C.  J. 

The  petition  in  the  court  below  sets  out  that  the  said  war- 
rant had  been  drawn  by  the  aforesaid  auditor  for  the  sum  of 
four  hundred  and  eighty  (1480)  dollars  for  that  amount,  un- 
der a  proceeding  for  a  peremptory  mandamus,  and  that 
when  the  said  warrant  had  been  presented  to  the  treasurer 
for  payment,  that  he  (the  treasurer)  had  refused  either  to 
pay  it  or  indorse  it ;  that  then  an  application  was  made  to 
the  court  below  for  a  mandamus  to  compel  its  payment  or 
indorsement,  or  to  show  cause  why  he  did  not  do  so,  which, 
after  argument,  was  made  peremptory. 

That  the  treasurer,  by  his  solicitor,  brought  the  case  to 
this  court  by  writ  of  error  and  assigned  as  error:  1.  That 
the  court  erred  in  granting  a  peremptory  writ  of  mandamus 
to  compel  the  respondent  to  indorse  the  said  warrant  as 
prayed  for.  The  case  was  submitted  by  Mr.  Johnson,  so- 
licitor for  plaintiff  in  error,  and  by  Mr.  Cook,  solicitor  for 
defendants  in  error,  each  citing  the  statutes  of  Wyoming. 

The  laws  of  the  territory  provide  that  the  auditor  of  the 
territory  shall  draw  all  warrants  on  the  treasury  for  moneys 
to  carry  on  the  affairs  of  the  territory,  and  that  the  treas- 
urer shall  pay  such  warrants  out  of  such  funds  in  the 
treasury  as  shall  be  appropriated  for  that  purpose ;  and  in 
the  event  of  there  being  no  funds  in  the  treasury  to  pay 
such  warrants,  it  shall  be  the  duty  of  the  treasurer  to  in- 
dorse each  warrant  that  it  has  not  paid  for  want  of  funds. 
They  also  provide  that  no  warrant  shall  be  drawn  unless  an 
appropriation  has  been  made  by  the  legislature  to  meet  it. 
But  this  territory,  owing  to  the  neglect  of  the  legislature  to 
make  the  necessary  appropriation  at  its  last  session,  has 
been  placed  in  sucli  a  condition  that  it  is  impossible  to 
carry  on  its  functions  without  the  necessary  funds  for  that 
purpose.  In  this  case  the  auditor  has  issued  his  warrant 
under  the  direction  of  one  of  the  judges  of  the  supreme 
court.  It  is  true  that  the  laws  of  this  territory  provide  that 
no  money  can  be  drawn  from  the  treasury  except  under  an 
appropriation  by  the  legislature,  but  that  is  under  the  sup- 
position that  the  legislature  will  properly  discharge  its  duties 


66  DONNELLAN  V.  NlCHOLLS.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

by  making  due  provision  for  executing  the  legitimate  func- 
tions of  government.  If  the  day  after  the  legislature  met  that 
body  had  adjourned  and  left  without  performing  any  of 
the  duties  incumbent  upon  it,  is  it  to  be  supposed  that  all 
the  business  of  the  territory  must  be  suspended  for  the  want 
of  appropriations  ?  Surely  not.  What  then  remains  to  be 
done  ?  So  far  as  the  failure  to  provide  for  the  expenses  of 
the  court  is  concerned,  we  were  left  in  a  state  of  chaos ;  and 
it  only  remains  for  the  government  to  exert  the  latent  power 
remaining  in  the  hands  of  the  people  for  their  own  protection. 
The  law  provides  that  the  sheriffs  of  the  several  counties 
shall  receive  certain  compensation  for  conveying  prisoners 
to  the  penitentiary,  and  this  is  just  as  imperative  as  any 
other  law  on  our  statute  books.  And  if  no  appropriation  is 
made,  and  no  money  can  under  any  circumstances  be  had, 
to  bear  the  expenses  of  such  removal  of  persons  convicted 
of  crime,  we  cannot  see  how  that  law  is  to  be  observed. 

We,  therefore,  feel  bound  to  see  that  the  laws  for  the 
protection  of  the  persons  and  property  of  our  citizens  be 
enforced,  even  if  the  legislature  has  failed  to  provide  the 
means.  But  is  there  no  provision  in  the  law  to  meet  such 
emergencies  as  have  arisen  under  the  circumstances  in  this 
case  ?  By  the  act  entitled  "  An  act  to  provide  for  criminals, 
insane,  and  certain  other  persons,  approved  December  7, 
1869,  ch.  20,  p.  305,  Statutes  of  Wyoming,  it  is  provided : 

"  Section  1.  That  in  any  county  in  this  territory,  when  it 
became  necessary  to  transport,  or  to  transport  and  provide 
for  any  idiot,  lunatic,  insane,  blind,  deaf,  deaf  mute  or 
criminal,  to  any  eastern  asylum,  school  or  prison,  it  shall 
be  the  duty  of  the  county  commissioners  of  such  county, 
upon  proper  and  satisfactory  representations  to  them,  to 
apply  to  the  governor  for  pecuniary  or  other  aid  in  such 
case. 

"  Section  2.  Then,  if  the  governor  approve  the  applica- 
tion, he  is  hereby  authorized  to  call  upon  the  auditor  for  a 
warrant  upon  the  treasurer,  in  favor  oi  the  board  of  county 
commissioners,  sufficient  for  the  purpose,  and  it  shall  be 


July,  1872.]  WOLGOTT  v.  TERRITORY  OF  WYOMING.        67 


Statement  of  Facts. 


placed  in  the  hands  of  the  county  commissioners,  who  shall 
be  officially  and  personally  responsible  for  the  proper  appli- 
cation of  such  funds,  as  far  as  they  may  be  able." 

This  is  all  that  has  been  done  in  this  case,  and  we  fail  to 
see  any  good  grounds  for  complaint  in  the  premises.  The 
action  of  the  district  court  in  granting  the  peremptory  man- 
damus, is  approved  and  affirmed. 


WOLCOTT  v.  THE  TERRITORY  OF  WYOMING. 

JURISDICTION — JUSTICES  OF  THE  PEACE. — The  organic  act  of  Wyojning 
territory,  provides  that  justices  of  the  peace  may  have  jurisdiction 
in  civil  and  criminal  cases  not  involving  titles  to  lands  or  cases  of 
felony,  where  the  amount  claimed  or  the  penalty  fixed  does  not  ex- 
ceed one  hundred  dollars,  and  as  limited  by  law. 

IDEM. — There  is  no  limit  to  the  penalty  for  the  crime  of  assault  and 
battery. 

IDEM. — Hence  justices  of  the  peace  have  no  jurisdiction  of  the  offense, 
nor  to  hear,  try  and  determine  the  same,  but  upon  the  charge  would 
sit  only,  and  have  authority  as  committing  magistrates. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

This  was  a  criminal  prosecution  for  assault  and  battery, 
commenced  before  a  justice  of  the  peace,  by  complaint  and 
warrant.  After  change  of  venue,  under  the  statute,  the  case 
was  tried  before  Justice  Slaughter,  of  Laramie  county,  on 
the  nineteenth  day  of  December,  1871,  and  said  justice  of 
the  peace  on  the  same  day,  after  consideration  of  the  case, 
adjudged  that  the  defendant,  Frank  Wolcott,  pay  a  fine  of 
ten  dollars  and  costs  of  prosecution.  An  appeal  was  taken 
to  the  district  court  of  said  county,  from  the  decision  of  the 
justice.  A  motion  was  made  by  the  prosecuting  attorney, 
in  the  district  court,  to  dismiss  the  appeal  from  the  justice's 
court.  The  district  court  sustained  the  motion,  ordered  the 
appeal  to  be  dismissed  and  a  writ  of  procedendo  to  issue  to 
the  justice  to  carry  the  judgment  into  effect.  The  defend- 
ant, ly  his  attorney,  t'.xcepted  to  the  ruling  of  the  district 


68  WOLCOTT  v.  TERRITORY  OF  WYOMING.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

court.     The  case  is  brought  to  this  court  by  a  writ  of  error, 
and  the  defendant  in  the  court  below  assigns  as  error  : 

I.  That  the  district  court  erred  in  dismissing  the  appeal 
and  affirming  the  judgment  of  the  justice. 

II.  That  the  court  erred  in  that  it  did  not  try  the  cause 
instead  of  dismissing  the  appeal. 

III.  That  the  court  erred  in  refusing  to  reverse  the  judg- 
ment of  the  justice  of  the  peace  before  whom  the  cause  was 
tried. 

E.  P.  Johnson,  for  plaintiff  in  error. 
/:  W.  Cook,  for  defendant  in  error. 

By  the  Court,  CAREY,  J.  The  only  assignment  of  error 
which  the  court  finds  it  necessary  to  consider,  is  the  first  one 
alleged,  that  is :  That  the  district  court  erred  in  dismissing 
the  appeal  and  affirming  the  judgment  of  the  justice.  The 
counsel  for  the  plaintiff  in  error  contends  that  the  justice 
of  the  peace  who  tried  the  case  had  not  jurisdiction  of  the 
offense,  and  for  that  reason  all  his  proceedings  were  void. 

The  organic  act  of  the  territory  provides  "  that  the  judi- 
cial power  of  said  territory  shall  be  vested  in  a  supreme 
court,  district  courts,  probate  courts  and  justices  of  the 
peace.  That  the  jurisdiction  of  the  several  courts  herein 
provided  for,  both  appellate  and  original,  and  that  of  the 
probate  courts  and  of  the  justices  of  the  peace,  shall  be  as 
limited  by  law,  provided,  that  justices  of  the  peace  shall  not 
have  jurisdiction  of  any  matter  in  controversy  when  the 
title  or  boundaries  of  land  may  be  in  dispute,  or  when  the 
debt  or  sum  claimed  shall  exceed  one  hundred  dollars,  arid 
the  said  supreme  and  district  courts  shall  possess  chancery 
as  well  as  common  law  jurisdiction,  and  authority  for  re- 
dress of  all  wrongs  committed  against  the  constitution  or 
laws  of  the  United  States,  or  of  the  territory,  affecting  per- 
sons or  property." 

It  is  plain  that  the  jurisdiction  of  justices  of  the  peace, 


July,  1872.]  WOLCOTT  v.  TERRITORY  OF  WYOMING.         b'9 

Opiuion  of  the  Court — Carey,  J. 

in  this  territory,  must  now  be  as  is  limited  by  the  laws  of 
the  territory  so  far  as  said  laws  are  not  inconsistent  with 
the  organic  act.  By  reference  to  the  act  of  the  legislature, 
denning  the  jurisdiction  of  justices  of  the  peace  in  criminal 
cases,  we  find  (Sec.  1,  Wyoming  Laws,  1869,  pp.  90,  91,) 
"That  justices  of  the  peace,  in  their  respective  counties, 
have  jurisdiction  of,  and  may  hear,  try  and  determine  all 
public  offenses  less  than  felony,  except  as  otherwise  provided 
by  law,  in  which  the  punishment  prescribed  by  law  does 
not  exceed  a  fine  of  one  hundred  dollars,  or  imprisonment 
for  six  months." 

We  gain  from  this  section  to  give  the  justice  jurisdiction, 
except  it  be  otherwise  provided  by  law,  to  hear,  try  and 
determine  a  public  offejise,  such  offense  must  be : 

1.  Less  than  a  felony; 

2.  Such  offense  "  less  than  felony  "  must  have  a  punish- 
ment prescribed  by  law ; 

3.  Such  punishment  prescribed  for  an  offense  "  less  than 
felony  "  must  be  a  fine  not  exceeding  one  hundred  dollars, 
or  imprisonment  not  exceeding  six  months. 

If  any  public  offense  is  deficient  in  any  of  these  requi- 
sites, the  justice  of  the  peace  has  no  jurisdiction  to  hear, 
try  and  determine  it.  The  law  of  the  territory  defines  uan 
assault  and  battery  to  be  the  unlawful  beating  of  another." 
It  is  admitted  that  the  defendant  was  tried  under  this  law 
by  the  justice.  Let  us  apply  the  test  and  find  whether  the 
justice  of  the  peace  had  jurisdiction  to  hear,  try  and  de- 
termine the  case.  Assault  and  battery  is  not  one  of  the 
exceptions  contemplated  in  the  section  defining  criminal 
jurisdiction  of  justices  of  the  peace  ;  or  in  other  words,  it 
is  not  an  offense  otherwise  provided  for  by  law  so  that  in 
respect  to  it  the  section  of  law  named  applies.  The  first 
question  then  to  be  determined  :  Is  the  assault  and  battery 
defined  by  the  statute  a  public  offense  less  than  felony? 
We  are  unable  to  answer  the  question.  The  law  is  silent. 
The  most  that  can  be  said  is,  that  it  is  unlawful.  If  the 
plaintiff  in  error  had  been  prosecuted  for  the  common  law 
offense  of  assault  and  battery,  then  the  court,  would  not  for 


70  WOLCOTT  v.  TERRITORY  OF  WYOMING.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

a  moment  hesitate  to  say  that  it  is  a  misdemeanor.  Again, 
is  there  a  punishment  prescribed  for  the  assault  and  bat- 
tery prescribed  by  the  statute,  which  does  not  exceed  one 
hundred  dollars  fine  or  six  months  imprisonment.  This 
question  must  be  answered  in  the  negative,  as  the  legisla-^ 
ture  has  failed  to  prescribe  any  punishment  whatever  for 
the  offense  of  assault  and  battery.  Hence  we  must  con- 
clude that  the  offense  for  which  the  defendant  was  tried  was 
not  one  of  which  the  justice  had  jurisdiction. 

But  it  was  contended,  since  no  objection  was  made  to  the 
justice  hearing,  trying  and  determining  the  cause  on  its 
merits,  it  is  presumed  that  he  had  jurisdiction.  In  civil 
cases,  where  a  statute  does  not  give  jurisdiction  the  con- 
sent of  parties  cannot  give  it:  5  Seld.  (N.  Y.)  35.  If  there 
be  reasons  for  this  being  the  law  in  civil  actions,  much 
stronger  grounds  exist  for  its  being  the  law  in  criminal 
cases.  The  principle  is  well  established  that  any  act  of  a 
tribunal  beyond  its  jurisdiction  is  null  and  void,  and  of  no 
effect  whatever :  33  Maine,  414  ;  13  111.  432  ;  21  Barb.  (N. 
Y.)  9.  Where  the  cause  of  action  is  not  within  the  juris- 
diction granted  by  law  to  the  tribunal,  it  will  dismiss  the 
suit  at  any  time  when  the  fact  is  brought  to  its  notice :  22 
Barb.  (N.  Y.)  323.  The  courts  of  justices  of  the  peace  are 
of  special  and  limited  jurisdiction.  They  can  take  nothing 
by  intendment  or  implication :  1  Nev.  100.  The  justices' 
jurisdiction  in  this  territory  depends  upon  express  legisla- 
tive enactment.  Congress  has  expressly  provided  that  their 
jurisdiction  shall  be  as  is  limited  by  law,  while  the  supreme 
court  and  district  court  shall  have  chancery  and  common 
law  jurisdiction  for  certain  purposes. 

It  is  claimed  that  even  if  the  justice  had  not  jurisdiction 
of  the  offense,  that  by  the  appeal  the  district  court  obtained 
jurisdiction,  and  could  have  tried  the  case  on  its  merits. 
The  contrary  doctrine  is  well  established.  The  appellate 
court  stands  in  the  same  position  as  the  court  of  original 
jurisdiction.  On  an  appeal,  want  of  jurisdiction  in  the  court 
below  is  equally  a  want  of  jurisdiction  in  the  appellate  court. 

Judgment  reversed. 


July,  1872.]       IVINSON  &  Co.  v.  ALTHROP.  71 


Statement  of  Facts. 


IVINSON  &  CO.  v.  ALTHROP. 

BREACH  OF  CONTRACT — LIQUIDATED  DAMAGES. — In  a  contract  for 
the  transportation  of  freight,  it  was  provided  "  that  in  the  event  of 
either  of  the  parties  failing  to  comply  with  the  terms  of  the  con- 
tract, the  party  so  failing  was  to  pay  the  other  party  the  sum  of 
one  thousand  dollars,  fixed  and  settled  damages."  Held,  that  this 
was  not  intended,  nor  to  be  construed  as  meaning  a  penal  sum; 
but  as  fixed,  settled  and  liquidated  damages,  and  the  defendant 
was  not  permitted  to  show  that  the  plaintiff  had  not  sustained  actual 
damages  to  that  amount. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

The  following  is  the  statement  of  the  case  as  given  by  the 
court  upon  the  delivery  of  the  opinion. 

This  was  an  action  on  a  written  contract  brought  by 
Darius  Althrop  to  the  adjourned  November  term,  1871. 
The  plaintiff's  petition  alleges  that  the  defendants  entered 
into  a  written  contract  thereto  attached,  and  made  a  part 
thereof,  in  which  it  was  stipulated  among  other  things,  that 
the  plaintiff  was  to  deliver  at  Fort  Laramie  in  this  territory, 
five  hundred  cords  of  wood  for  the  use  of  the  United  States 
troops  at  said  fort,  such  as  would  be  received  by  the  post- 
quartermaster,  at  the  times  and  in  the  manner  stipulated ; 
and  that  one  of  the  stipulations  of  the  said  written  contract 
was,  that  in  the  event  of  either  of  the  parties  failing  to  com- 
ply with  the  terms  of  the  said  contract,  the  party  so  failing 
was  to  pay  to  the  other  party  the  sum  of  one  thousand 
(1,000)  dollars,  fixed  and  settled  damages.  That  in  pursu- 
ance of  the  said  agreement,  the  plaintiff  hired  several  men 
as  wood-choppers,  teamsters,  etc. ;  that  he  spent  considera- 
ble time,  labor  and  expense  in  fitting  up  and  arranging  his 
wagons  for  the  purpose  of  hauling  the  wood;  that  he  laid  in 
a  large  stock  of  provisions,  viz. :  to  about  the  value  of  four 
hundred  (400)  dollars;  that  he  left  home  with  his -men, 
teams,  and  provisions,  in  time  to  commence  fulfilling  his 
part  of  the  said  contract ;  that  after  lie  had  proceeded  on 
his  way  some  fifty  or  more  miles,  he  was  met  by  one  of  the 
partners  of  the  defendants,  and  informed  by  him  that  he 


72  IVINSON  &  Co.  9.  ALTHBOP.  [Snp.  Ct. 


Statement  of  Facts. 


should  not  proceed  further,  as  they  would  have  to  abandon 
the  contract,  from  tire  fact  that  they,  the  defendants,  had 
failed  to  procure  the  contract  from  the  United  States,  and 
consequently  they  would  have  to  break  their  agreement  with 
the  plaintiff;  telling  him  further  that  he,  the  plaintiff, 
should  return  home  and  come  to  Laramie  city;  and  they, 
the  defendants,  would  settle  with  him.  That  plaintiff  went 
within  a  few  days  to  Laramie  city  for  that  purpose,  but  failed 
to  procure  a  satisfactory  settlement.  Suit  was  then  brought 
in  the  county  of  Laramie,  a  summons  issued  and  served  on 
Edward  Ivinson,  one  of  the  defendants.  The  case  coming 
on  for  trial  at  the  adjourned  November  term,  on  Tuesday, 
January  16,  A.  D.  1872,  the  defendant,  by  his  attorney,  Mr. 
Street,  filed  a  general  demurrer,  which  after  argument  was 
overruled  by  the  court,  Chief  Justice  Fisher  presiding,  to 
which  ruling  defendant  excepted.  Leave  was  then  given  to 
the  defendants  to  answer  by  the  next  Thursday. 

The  answer  of  the  defendant  being  filed  a  motion  was 
made  by  defendant  for  a  change  of  venue,  which,  after  argu- 
ment, was  overruled  by  the  court.  On  Monday,  February 
26,  1872,  a  jury  was  duly  impaneled,  and  the  case  proceeded 
with  the  defendant  excepting  to  certain  rulings  of  the  court 
in  rejecting  certain  evidence  offered  by  defendant,  as  will 
appear  by  defendants',  now  plaintiffs  in  error,  bill  of  excep- 
tions. The  jury  retired  under  the  following  charge  of  the 
court  reduced  to  writing  at  the  request  of  defendants'  coun- 
sel: 

"  Charge :  There  was  a  contract  in  writing  entered  into 
between  the  parties  to  this  action,  which  has  been  given  in 
evidence  on  the  trial  and  made  a  part  of  plaintiff's  petition, 
and  not  disputed  on  the  part  of  the  defendant.  One  of  the 
terms  of  this  contract  is,  that  if  either  of  the  parties  fail  to 
carry  out  in  good  faith  any  or  all  of  the  covenants  and  agree- 
ments specified  in  the  written  contract,  the  party  so  failing 
shall  forfeit  and  pay  to  the  other  the  penal  sum  of  one  thou- 
sand dollars,  as  fixed  and  settled  damages. 


July,  1872.]       IVINSON  &  Co.  v.  ALTHROP.  73 


Statement  of  Facts. 


"  Now  it  is  contended  by  the  plaintiff  that  this  one  thou- 
sand dollars  Mentioned  in  the  written  contiuct  is  the  measure 
of  damages  to  which  they  are  entitled;  while  the  defendants 
on  the  other  hand  hold  that  only  such  an  amount  can  be  re- 
covered, as  it  has  been  conclusively  proven  to  have  been 
sustained  by  plaintiff  by  reason  of  the  failure  of  the  defend- 
ants to  carry  out  the  terms  of  the  contract  on  their  part. 

"  Now,  gentlemen,  the  courts  have  held  on  this  question 
on  both  sides  ;  that  is,  they  have  sustained  both  the  view 
taken  by  plaintiff  and  that  taken  by  defendants.  Some 
learned  courts  have  held  that  the  terms  of  the  written  con- 
tract settles  the  question,  and  that  the  one  thousand  dollars 
are  to  be  treated  as  liquidated  damages,  while  others,  equally 
learned,  have  held  that  the  measure  of  damages  is  to  be 
found  in  the  actual  loss  of  profits,  or  in  the  difference  be- 
tween what  the  wood  would  have  cost  the  plaintiff  delivered 
at  Fort  Laramie  and  the  amount  he  was  to  receive  from  de- 
fendants for  delivering  it. 

"  There  is  one  point,  however,  in  which  there  appears  har- 
mony in  the  opinions  of  the  courts,  and  that  is  this  :  That 
whatever  was  understood  by  the  parties  at  the  time  the  con- 
tract was '  made  settles  the  question  as  to  the  measure  of 
damages,  and  what  was  the  understanding  of  the  parties 
must  be  learned  from  the  language  of  the  contract  itself. 
Now  if  this  contract  merely  said  that  for  the  true  perform- 
ance of  all  and  singular  the  covenants  and  agreements 
herein  contained,  each  binds  himself  or  themselves  to  the 
other  in  the  penal  sum  of  one  thousand  dollars,  then  the 
measure  of  damages  would  have  to  be  found  by  ascertaining 
what  the  plaintiff  lost  by  the  failure  of  the  defendants  to  per- 
form their  part  of  the  agreement. 

"  But  the  words  of  the  contract  are  very  definite  ;  they  go 
on  to  say  that  this  sum  of  one  thousand  dollars  was  to  be 
the  fixed  and  settled  damages.  Now  it  is  claimed  that  the 
plaintiff  has  sustained  damages  beyond  the  sum  of  one 
thousand  dollars,  but  the  plaintiff  having  brought  his  action 
for  but  one  thousand  dollars,  he  is  limited  to  that  amount. 


74  IVINSON  &  Co.  v.  ALTHROP.  [Sup.  Ct. 


Argument  for  Defendant. 


My  view  of  this  case  then  is,  that  the  contract  fixes  by  its 
own  terms  the  amount  to  which  the  plaintiff  is  entitled,  and 
having  brought  his  action  on  this  hypothesis,  he  cannot  re- 
cover any  other  sum. 

"  Your  verdict,  then,  should  be  for  the  plaintiff,  and  as- 
sess the  damages  at  what  you  find  to  be  right  under  the 
contract." 

Under  this  charge  the  jury  returned  a  verdict  for  plaintiff 
for  one  thousand  dollars.  A  motion  was  then  made  for  a  new 
trial,  which  was  overruled. 

The  defendant,  by  his  counsel,  then  brought  up  his  case 
on  a  writ  of  error,  and  assigned  the  following  points  of 
error : 

I.  The  court  overruled  the  defendant's  demurrer,  to  which 
he  excepted,  and  the  court  overruled  the  defendant's  appli- 
cation to  have  the  venue  of  this  cause  changed,  to  which  he 
excepted. 

II.  The  jury  erred  in  the  assessment  of  damages,  making 
the  same  too  large. 

III.  The  verdict  is  not  sustained  by  sufficient  evidence. 

IV.  The  court  erred  in  sustaining  the  objections  of  the 
plaintiff  to  certain  testimony  offered  by  the  defendant  at 
the  trial,  and  the  court  erred  in  its  instructions  to  the  jury, 
whereby  and  by  reason  of  all  which  injustice  was  done  to 
the  defendant  on  the  trial  of  said  cause. 

Thomas  J.  Street,  for  plaintiff  in  error,  cites  :  Sedg.  on 
Damages,  392,  575  ;  14  Gray,  165 ;  21  Wend.  456 ;  Code, 
sec.  700.  On  the  question  of  the  court  overruling  the  testi- 
mony of  defendant's  witnesses :  Graham  &  Waterman  on 
New  Trials,  666,  674  ;  and  upon  the  effect  of  the  instructions 
to  the  jury:  Graham  &  Waterman,  725,  763  ;  19  Wend.  402 ; 
12  Mass.  22  ;  11  Pick.  367  ;  16  Wend.  676  ;  12  Johns.  513; 
and  upon  the  question  of  change  of  venue :  Code,  sees.  58, 
59. 

W.  W.  Corlett,  for  defendant  in  error,  cites  first  on  the 


July,  1872.]       IVINSON  &  Co.  v.  ALTHROP.  75 

Opinion  of  the  Court — Fisher,  C.  J. 

question  of  the  demurrer  of  defendant :  Sedg.  on  Dani. 
682;  4  Iowa,  551 ;  3  Id.  209.  On  the  question  of  a  change 
of  venue:  Civ.  Code,  sees.  58,  59;  Voorhies  Code,  148-152. 
On  the  rejection  of  the  evidence :  Sedg.  on  Dam.  223,  459. 
On  the  instructions  to  the  jury :  4  Wend.  484  ;  8  Id.  109 ;  4 
Kern.  310  j  4  Seld.  37  ;  2  Id.  233  ;  1  Kern.  416  ;  1  Seld.  422  , 
Graham  &  Waterman,  862  et  seq.;  1  Denio,  162.  Upon  the 
question  of  the  misdirection  of  the  court  as  to  its  effect, 
where  no  injustice  has  been  done  :  Graham  &  Waterman, 
862 ;  9  Cowan,  680. 

And  as  to  whether  the  contract  is  binding  on  the  parties, 
so  that  the  measure  of  damages  is  to  be  ascertained  by  the 
terms  of  the  written  agreement,  or  whether  the  measure  of 
damages  is  to  be  ascertained  by  proving  the  actual  loss  sus- 
tained, he  cites :  Sedg.  on  Meas.  of  Dam.  412  j  Id.  421 ;  13 
Gray,  42. 

Mr.  Street,  in  his  reply,  by  consent,  cites :  4  Iowa,  551 ; 
21  Wend.  426. 

By  the  Court,  FISHER,  C.  J.  The  first  part  which  pre- 
sents itself  to  this  court,  in  accordance  with  the  line  of 
argument  pursued  by  the  counsel  on  both  sides  of  this  case, 
is  whether  the  court  below  erred  in  overruling  the  defend- 
ant's (in  the  court  below)  demurrer.  Of  this  there  cannot 
be  any  doubt  when  we  consider  the  office  of  a  demurrer. 
Mr.  Chitty,  in  his  work  on  pleading,  than  which  there  is  no 
higher  authority,  lays  down  the  maxim  that  a  general  de- 
murrer goes  to  the  whole  of  the  declaration,  or  in  this  terri- 
tory the  petition,  so  that  if  a  general  demurrer  be  filed  to 
the  declaration  or  petition,  in  order  to  sustain  the  demurrer, 
the  declaration  or  petition  must  be  defective  in  every  part, 
and  if  the  plaintiff  in  the  action  has  set  out  in  his  petition, 
any  one  cause  of  action  which  can  be  sustained  by  the  evi- 
dence, however  defective  his  petition  may  be  upon  other 
points,  the  defective  parts  must  be  met  by  a  special,  and  not 
by  a  general  demurrer.  On  the  subject  of  a  change  of  venue, 


"T6  IVINSON  &  Co.  v.  ALTHROP.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

we  find  no  provision  in  the  civil  code  of  this  territory,  au- 
thorizing a  party  to  an  action  to  apply  for  this  remedy,  except 
what  is  provided  for  in  section  59  of  the  code  of  civil  pro- 
cedure of  this  territory,  which  is  where  it  is  provided  : 

"  That  if  a  party  to  an  action  shall  make  affidavit  that 
he  helieves  that  from  the  bias,  prejudice  or  partiality  of  the 
judge,  he  cannot  get  a  fair  and  impartial  trial,  the  court 
shall  change  the  place  of  trial  to  some  other  district ;  or  for 
the  convenience  of  parties,  the  judge  may  request  the  judge 
of  some  other  district  to  try  the  action  in  the  county  where 
the  suit  is  pending." 

Now,  in  this  case  there  was  no  such  affidavit  made,  and  of 
course  it  was  not  obligatory  on  the  court  below  to  order 
such  change,  hence  we  can  discover  no  error  in  this  respect. 
The  most  important  error  assigned  by  the  plaintiff  in  error 
or  defendant  below  is,  that  the  court  erred  in  sustaining  the 
plaintiff's  (in  the  court  below)  objection  to  evidence  offered 
by  the  defendants  below  on  the  question  of  the  measure  of 
damages. 

It  depends  upon  what  view  the  court  below  took  as  to 
what  established  the  measure  of  damages.  If  the  court 
held,  as  it  appears  to  have  done,  that  the  written  contract 
determined  the  measure  of  damages,  it  would  have  been 
enough  to  have  permitted  the  written  contract  to  have  been 
proven,  and  then  to  have  allowed  the  plaintiff  below  to  have 
shown  that  its  terms  had  been  broken  by  the  defendants, 
and  then  to  have  instructed  the  jury  that  the  measure  of 
damages  was  settled  by  the  contract  itself,  and  if  so,  no 
other  evidence  should  have  been  allowed,  except  to  show 
some  circumstance  by  which  it  could  be  made  to  appear 
that  the  contract  had  been  broken  by  some  act  of  the 
plaintiff  below.  The  exception  to  the  charge  of  the  court 
below  on  the  subject  of  its  instructions  is  somewhat  of  the 
same  nature  of  the  general  demurrer.  We  think  that  the 
exception  to  the  charge  of  the  court  should  be  not  to  the 


July,  1872.]       IVINSON  &  Co.  v.  ALTHROP.  77 

Opinion  of  the  Court — Fisher,  C.  .1. 

whole  charge,  but  to  some  specific  portions  of  it,  unless  it 
was  wrong  in  every  part,  and  this  we  presume  will  not  be 
claimed.  In  the  fourth  of  Kernan's  Reports,  page  310,  it 
was  held  that  a  general  exception  to  a  charge  of  the  court 
containing  distinct  propositions  is  unavailing,  unless  the 
party  excepting  show  that  each  proposition  is  erroneous. 
In  the  same  case  the  court  of  appeals  of  the  state  of  New 
York  held  that  a  general  objection  to  the  charge  is  not  suf- 
ficient, the  objection  must  be  to  some  specific  point  of  the 
charge. 

In  this  case  we  fail  to  see  that  the  charge  is  erroneous  in 
any  one  of  the  propositions. 

On  the  subject  of  the  measure  of  damages,  it  was  held  in 
a  case  cited  in  Sedgwick  on  the  Measure  of  Damages,  page 
412,  that  an  action  was  brought  on  a  written  contract;  the 
defaulting  party  to  the  instrument  agreed  to  forfeit  the  sum 
of  eight  hundred  dollars,  fixed  and  settled  damages  ;  that 
the  words  of  the  contract  were  held  to  be  too  express  to  be 
questioned,  and  the  land  not  having  been  conveyed  accord- 
ing to  the  terms  of  the  contract  the  sum  was  treated  as  liqui- 
dated damages.  The  same  doctrine  was  held  in  the  courts 
of  Massachusetts  and  several  of  the  other  states.  The  ques- 
tion of  actual  damages  is  one  that  often  becomes  quite  dif- 
ficult to  determine,  and  in  the  case  under  consideration  this 
difficulty  seems  to  present  itself.  A  party  is  justified  in 
claiming  damages  not  only  on  actual  loss  of  outlay  but  for 
a  failure  to  realize  anticipated  profits  ;  and  while  it  would  be 
impossible  to  estimate  the  exact  amount  of  damages  sus- 
tained by  the  breach  of  the  contract,  there  is  a  rule  estab- 
lished by  the  contract  itself  which,  from  the  definitencss  of 
its  terms,  appears  to  have  been  clearly  understood  by  the 
parties  when  the  contract  was  signed,  hence  the  jury  were 
relieved  of  the  labor  of  ascertaining  the  actual  amount  by 
parol  evidence;  and  we  are  of  the  opinion  that  the  court 
below  was  right  in  its  instructions  to  the  jury  to  take  the 
contract  as  liquidated  damages. 

It  is  held  by  the  counsel  for  the  defendant  in  error  that 


78  FIELDS  v.  TERRITORY  OF  WYOMING.     [8  up.  Ct. 

Opinion  of  the  Court — Carey,  J. 

notwithstanding  the  instructions  may  have  been  wrong  in 
some  particulars,  yet  if  substantial  justice  was  done  that 
then  the  verdict  should  not  be  disturbed.  This  doctrine  is 
so  well  established  that  we  deem  it  useless  to  enlarge  upon 
it  here ;  but  we  do  not  apprehend  the  necessity  of  applying 
the  principle  to  this  case,  inasmuch  as  the  verdict  is  fully 
justified  upon  the  terms  of  the  contract. 
The  judgment  is  affirmed. 


FIELDS  v.  THE  TERRITORY  OF  WYOMING. 

INDICTMENT — PROOF. — It  is  immaterial  what  date  is  alleged  in  an  in- 
dictment as  the  day  on  which  a  crime  was  committed,  provided 
such  day  be  prior  to  the  finding  of  the  indictment  and  within  the 
time  prescribed  by  the  statute  of  limitations. 

IDEM. — But  the  rule  as  to  proof  under  an  indictment  is  not  so  liberal  as 
it  must  be  confined  to  a  given  crime  and  to  a  given  time. 

IDEM. — The  prosecution  on  a  trial  under  an  indictment  so  drawn  that 
it  might  cover  a  dozen  different  offenses  of  the  same  nature,  after 
examining  the  first  witness  as  to  one  offense  on  a  day  certain,  must 
confine  its  proof  to  that  particular  offense,  and  the  admission  by 
the  court  of  evidence  tending  to  prove  other  offenses  is  error. 

IDEM. — Evidence  of  a  distinct  substantive  offense  cannot  be  admitted 
to  aid  in  proving  the  commission  of  another  offense. 

ERROR  to  the  District  Court  for  Laramie  County. 

The  statement  of  this  case  is  full}7  set  forth  in  the  opinion. 

L  W.  Cook,  for  the  territory,  cited:  2  Park.  C.  R.  583;  1 
N.  Y.  Dig.  838;  1  Whar.  Grim.  Law,  sees.  599,  600,  631- 
635. 

W.  W.  Corlett,  for  plaintiff  in  error,  cited:  1  Whar.  dim. 
Law,  647-652  ;  2  Gush.  590  ;  2  Park.  C.  R.  583  ;  3  Id.  681  ; 
1  Greenl.  on  Ev.  sec.  53;  2  Gray,  354;  21  Pick.  515. 

By  the  Court,  CAR?:Y,  J.  The  defendant  was  indicted  at 
the  November  term,  1871,  of  the  district  court,  first  judicial 


July,  1872.]  FIKLDS  v.  TERRITORY  OF  WYOMING.  79 

Opinion  of  the  Court — Carey,  J. 

district,  under  chap.  27,  statutes  1869,  section  8,  for  the 
crime  of  permitting  a  certain  game  of  chance  to  be  played  in 
a  house  under  his  control,  for  money,  etc.  The  indictment 
alleges  that  the  defendant  "  on  the  first  day  of  January,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-two,  and  on  divers  other  days  and  times  before  and 
since  that  day,  at  the  county  aforesaid,  county  of  Laramie, 
unlawfully  did  keep  and  deal,  and  permit  to  be  kept  and 
dealt  in  a  building  under  his  control,  a  certain  game  of 
chance  played  with  cards  for  money  and  other  represen- 
tatives of  value,  commonly  called  and  known  as  'poker,' 
contrary  to  the  form  of  the  statute,"  etc. 

At  the  same  term  of  the  district  court,  the  defendant  was 
arraigned  on  said  indictment  and  plead  not  guilty,  and 
trial  was  had  by  jury,  and  a  verdict  of  guilty  rendered. 
Before  judgment,  the  defendant,  by  his  counsel,  made  a 
motion  to  set  aside  the  verdict  of  the  jury,  and  that  the 
court  grant  a  new  trial.  The  motion,  after  argument,  was 
overruled  by  the  court.  The  reasons  assigned  in  the  motion 
for  a  new  trial,  are  virtually  the  same  as  those  set  forth  in 
the  petition  in  error,  which  are  as  follows,  to  wit: 

1.  That  the  district  court  erred  in  admitting  certain  testi- 
mony offered  by  the  prosecution  and  objected  to  by  the  de- 
fendant. 

2.  That  the  district  court  erred  in  its  instructions  to  the 
jury,  and  in  refusing  to  give  certain  instructions  requested 
on  the  part  of  the  defendant. 

3.  That  the  district  court  erred  in  overruling  the  motion 
of  the  defendant  to   set  aside  the   verdict  of  the  jury  and 
grant  a  new  trial. 

The  section  of  the  statute  under  which  the  indictment  was 
found,  provides  that  certain  games  may  be  licensed  ;  but  the 
game  of  poker  is  not  included  among  these,  and  conse- 
quently the  game  of  poker,  as  alleged  in  the  indictment, 
falls  under  that  clause  of  the  section  which  provides  that 
"  any  person  or  persons  who  shall  keep  or  deal,  or  permit 
to  be  kept  or  dealt  in  any  building  or  place  under  his  or 


80  FIELDS  v.  TERRITORY  OF  WYOMING.    [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

their  control,  any  other  banking  or  other  game  of  chance 
for  money,  or  other  representation  of  value,  played  with 
cards,  shall  be  deemed  guilty  of  a  misdemeanor,"  etc.  That 
which  constitutes  the  misdemeanor  under  this  section  is  not 
the  keeping  of  a  gaming  house,  but  the  keeping  and  dealing, 
or  permitting  to  be  kept  or  dealt,  any  game  of  chance  with 
cards  for  money,  etc.,  in  any  building  or  place  under  one's 
control,  which  game  is  not  authorized  to  be  licensed  by  the 
statute.  The  doing  or  permitting  either  of  the  acts  pro- 
hibited in  itself,  constitutes  an  offense,  and  as  often  as  one 
does  or  permits  either  of  the  acts  to  be  done  he  commits  a 
distinct  misdemeanor. 

In  the  trial  in  the  district  court,  the  first  witness  called  on 
the  part  of  the  prosecution,  E.  W.  Keplinger,  testified  that 
about  the  seventh  or  eighth  of  January,  1872,  at  the  place 
of  the  defendant,  he  saw  a  game  of  chance,  called  poker, 
played  with  cards  for  checks  and  money.  The  next  witness 
called,  P.  B.  Danielson,  was  asked  the  following  question 
by  the  prosecution,  viz :  "  State  whether  or  not  you  ever 
saw  any  game  of  poker  played  in  the  building  kept  by  or 
under  the  control  of  the  defendant  within  two  years  next 
prior  to  the  twenty-seventh  day  of  January,  1872?"  This 
question  was  also  asked  J.  A.  Jefferson,  a  witness  on  the 
part  of  the  prosecution.  In  each  instance  the  question  was 
objected  to  by  the  defendant  on  the  ground  that  the  evidence 
in  the  case  must  be  confined  to  the  particular  game  concern- 
ing which  evidence  had  already  been  given  to  the  jury,  and 
to  the  same  time  as  that  mentioned  by  witness  Keplinger. 
The  court  overruled  the  objections  and  permitted  the  ques- 
tions to  be  asked  and  answered.  It  is  upon  the  rulings  of 
the  court  upon  these  questions  that  the  first  error  assigned 
is  based. 

It  is  immaterial  what  date  is  alleged  as  the  day  on  which 
a  crime  was  committed  in  an  indictment,  provided  such  day 
be  prior  to  the  finding  of  the  indictment  and  within  the  time 
prescribed  by  the  statute  of  limitations ;  but  the  rule  as  to 
proof  under  an  indictment  is  not  so  liberal,  as  it  must  be 
confined  to  a  given  crime  and  to  a  given  time. 


July,  1872.]  FIELDS  v.  TERRITORY  OF  WYOMING.  81 

Opinion  of  the  Court — Carey,  J. 

* • 

For  instance,  in  tins  case,  the  indictment  may  have  cov- 
ered either  of  a  dozen  distinct  offenses  under  the  section  of 
the  statute  upon  which  the  indictment  was  founded.  That 
is,  William  Fields  may  have  heen  guilty  of  keeping  or  deal- 
ing, or  permitting  to  be  kept  or  dealt  in  a  building  under 
his  control,  the  particular  game  of  poker,  as  prohibited  by 
the  statute,  on  a  dozen  different  times  and  occasions  previous 
to  the  finding  of  the  indictment,  and  within  the  time  fixed 
by  the  statute  of  limitations,  but  on  the  trial  on  the  par- 
ticular indictment,  the  prosecution  should  have  confined  the 
proof  to  one  distinct  offense,  if  more  than  one  offense  had 
been  committed.  Evidence  can  only  be  offered  tending  to 
prove  one  distinct  offense,  and  when  such  offense  has  been 
fixed  as  to  time  and  place,  the  proof  should  be  confined  to  it 
alone,  the  rule  being  that  evidence  of  a  distinct,  substantive 
offense,  cannot  be  admitted  in  support  of  another  offense. 
In  this  case,  the  prosecution,  by  the  witness  Keplinger,  fixed 
a  time  when  the  alleged  misdemeanor,  as  charged  in  the  in- 
dictment, was  committed,  and  all  evidence  not  tending  to 
prove  this  alleged  misdemeanor,  on  objection  of  defendant, 
should  have  been  ruled  out  by  the  district  court. 

This  disposition  of  the  first  error  assigned,  disposes  also 
of  the  second  and  third,  as  the  latter  two  grew  out  of  the 
first. 

Judgment  of  district  court  reversed,  and  new  trial  or- 
dered. 

6 


82  PHILLIPS  v.  TERRITORY  OF  WYOMING.  [Sup.  Ct. 


Statement  of  Facts. 


PHILLIPS  v.  THE  TERRITORY  OF  WYOMING. 

CRIMINAL  PRACTICE  EVIDENCE — NEW  TRIAL. — In  proceedings  in  error 
in  a  criminal  case  to  obtain  the  review  of  the  orders,  rulings  and 
decisions  of  the  lower  court,  and  one  of  the  errors  assigned  being: 
"  That  the  verdict  is  not  sustained  by  sufficient  evidence  and  is  con- 
trary to  law,"  the  record  must  show  all  the  evidence  to  enable  this 
court  to  pass  upon  the  question. 

INDICTMENT — CHARGE  OF  COURT. — Under  the  statutes  of  the  territory 
of  Wyoming,  upon  the  trial  of  an  indictment  for  murder  in  the  first 
degree,  it  is  not  erroneous  for  the  court  to  instruct  the  jury  "  that 
if  they  find  from  the  evidence  that  the  homicide  was  perpetrated 
purposely  and  maliciously,  but  without  deliberation  and  premedi- 
tation, they  might  and  should  find  the  defendant  guilty  of  murder 
in  the  second  degree." 

IDEM. — A  conviction  will  not  be  disturbed,  unless  there  be  a  decided 
preponderance  of  evidence  in  favor  of  the  prisoner. 

IDEM. — A  defendant  in  a  criminal  action  cannot  claim  a  new  trial  on  the 
ground  that  the  jury  found  him  guilty  of  a  lesser  grade  of  the  offense 
charged  in  the  indictment  than  the  evidence  warranted. 

ERROR  to  the  District  Court  for  Laramie  County. 

The  following  is  the  statement  of  the  case  filed  by  the 
judge  wiiting  the  opinion  : 

The  defendant,  Frank  Philips,  was  indicted  at  the  July 
term,  1871,  of  the  district  court,  Laramie  county,  first 
judicial  district,  for  the  crime  of  murder  in  the  first  degree. 
At  the  same  term  he  was  arraigned  on  said  indictment,  and 
after  interposition  of  plea  of  not  guilty,  was  tried  on  said 
indictment  and  plea  by  jury  and  found  guilty  of  murder  in 
the  second  degree.  Thereafter  at  the  same  term,  defendant 
by  his  counsel  made  a  motion  to  set  aside  the  verdict  of  the 
jury  and  to  grant  a  new  trial,  which  motion  after  argument 
by  counsel  was  overruled  by  the  court.  The  reasons  as- 
signed in  said  motion  to  set  aside  the  verdict  were  as  fol- 
lows : 

1.  That  the  verdict  is  not  sustained  by  sufficient  evidence 
and  is  contrary  to  law. 

2.  That  the  court  erred  in  instructing  the  jury  "  that  if 
they  found  from  the  evidence  that  the  homicide  was  perpe- 
trated purposely  and  maliciously,  but  without  deliberation 


July,  1872.]  PHILLIPS  v.  TERRITORY  OF  WYOMING.          83 

Opinion  of  the  Court — Carey,  J. 

and  premeditation,  they  might  and  should  find  the  defend- 
ant guilty  of  murder  in  the  second  degree." 

H.  Garbanati,  for  plaintiff  in  error. 
1.  W.  Cook,  for  defendant  in  error. 

By  the  Court,  CAREY,  J.  It  does  not  appear  by  the  rec- 
ord by  what  process  this  case  is  brought  to  this  court,  but 
as  counsel  for  the  territory  and  counsel  for  the  defendant 
have  argued  this  cause  (without  objection)  upon  the  ques- 
tions presented  in  the  motion  for  a  new  trial  in  the  district 
court,  this  court  will  decide  upon  the  questions  so  presented. 
The  first  reason  assigned  in  the  motion  is,  that  the  verdict  is 
not  sustained  by  the  evidence  and  is  contrary  to  law.  Sec- 
tion 145  of  the  code  of  criminal  procedure  provides  among 
other  things,  "  where  the  grounds  of  exception  are  that  the 
verdict  it  not  sustained  by  sufficient  evidence  or  is  contrary 
to  law,  and  the  court  has  overruled  a  motion  for  a  new  trial 
made  on  that  ground,  the  bill  of  exceptions  shall  substan- 
tially set  out  the  evidence."  Notwithstanding  this  provision 
of  law  it  would  be  impossible  for  this  court  to  decide  that  a 
verdict  rendered  in  a  district  court  was  not  sustained  by  evi- 
dence unless  the  record  shows  all  the  evidence.  If  this 
court  is  to  be  governed  by  reports  of  evidence  which  pur- 
port to  be  substantially  true,  we  can  conceive  of  cases  where 
it  may  do  manifest  injustice  to  parties  as  well  as  to  the 
rulings  and  decisions  of  the  district  courts. 

In  this  case,  the  counsel  for  the  territory  and  the  counsel 
for  the  defendant,  do  not  agree  that  the  record  contains  all 
the  testimony.  But  supposing  that  it  does,  then  this  court 
would  not  be  justified  in  disturbing  the  verdict  of  the  jury. 
The  jury  are  the  judges  of  the  facts.  The  law  is  well  set- 
tled that  a  court,  especially  a  court  of  errors  or  appeals, 
will  not  disturb  a  verdict  of  a  jury  where  the  question  is 
wholly  one  of  fact,  unless  it  is  clearly  against  the  weight  of 
evidence.  "  A  conviction  will  not  be  disturbed,  unless 
there  be  a  decided  preponderance  of  evidence  in  favor  of 


84  PHILLIPS  v.  TERRITORY  OF  WYOMING.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

the  prisoner:"  People  v.  Ah  Loy,\b  Cal.  301-312;  12  Ills. 
460.  In  this  case,  the  court  finds  from  the  record,  that 
there  is  evidence  upon  which  the  jury  could  have  based 
their  verdict  of  guilt. 

In  the  case  of  Cox  v.  State,  32  Texas,  610,  the  court  held 
u  that  as  the  supreme  court  had  not  the  same  opportunity 
as  that  of  a  district  judge,  for  coming  to  a  correct  conclu- 
sion as  to  the  correctness  of  the  verdict,  a  supreme  court 
will  not  disturb  a  verdict  on  the  ground  that  it  is  contrary 
to  the  evidence,  unless  the  record  makes  it  most  manifest 
that  material  error  was  committed  by  the  jury."  It  was 
contended  in  argument  by  the  attorney  for  the  defendant, 
that  the  evidence  in  their  case,  if  it  proved  the  defendant 
guilty  of  anything,  it  was  murder  in  the  first  degree,  and 
not  murder  in  the  second  degree,  as  found  by  the  jury. 
Admitting  the  proposition  to.  be  true,  can  the  defendant 
take  advantage  of  it?  He  has  no  cause  for  complaint.  By 
statute  in  this  territory,  a  person  indicted  for  murder  in  the 
first  degree,  can  be  found  guilty  of  murder  in  the  second 
degree.  The  law  is  well  settled  that  if  a  defendant  is  con- 
victed of  a  lesser  felony  than  that  charged  in  the  indict- 
ment, he  cannot  again  be  tried  for  the  greater,  nor  can  a 
defendant  claim  a  new  trial  on  the  ground  that  the  jury 
found  him  guilty  of  a  lesser  grade  of  the  offense  charged  in 
the  indictment  than  the  evidence  warranted.  This  question 
is  settled  by  the  case  of  Commonwealth  v.  Me  Pike,  3  Gush. 
181.  In  this  case  one  of  the  points  raised  \vy  the  bill  of 
exceptions,  presented  the;  question  whether  upon  an  indict- 
ment for  manslaughter,  the  defendant  must  be  acquitted  if  the 
evidence  satisfied  the  jury  that  the  homicide  was  committed 
with  malice  aforethought.  The  court  held  that  in  such  a  case 
the  party  on  trial  had  no  reasonable  ground  for  complaint, 
that  it  is  not  for  him  to  say  that  his  crime  has  another 
element  in  it  which,  if  charged  in  the  indictment,  would 
have  constituted  it  a  higher  offense  and  more  severely  pun- 
ishable. 

So  in  this  case,  all  the  elements  of  murder  in  the  second 


July,  1872.]  BROWN  v.  NASH.  85 


Points  decided. 


degree  are  contained  in  murder  of  the  first  degree,  and  if 
the  jury  convicted  the  defendant  of  the  lesser  offense,  when 
the  evidence  would  have  warranted  them  in  finding  him 
guilty  of  the  greater,  he  has  no  reason  to  complain.  It  is 
argued  that  the  court  below  erred  in  instructing  the  jury, 
the  only  instruction  recited  in  the  motion  for  a  new  trial,  is 
in  the  language  of  the  statute  defining  murder  in  the  second 
degree,  and  it  is  clear  this  instruction  in  this  case  was  not 
erroneous. 

Judgment  affirmed. 


BROWN,  SUPERINTENDENT  OF  SCHOOLS  OF  ALBANY 
COUNTY,  v.  NASH,  TREASURER  OF  SCHOOL  DISTRICT 
No.  2  OF  ALBANY  COUNTY. 

LEGISLATIVE  PROCEEDINGS — PASSAGE  OF  BILLS. — Each  house  keeps  a 
journal  of  its  proceedings,  which  is  a  public  record,  and  of  which  the 
courts  are  at  liberty  to  take  judicial  notice.  If  it  should  appear 
from  these  journals  that  any  act  did  not  receive  the  requisite  ma- 
jority, or  that  in  respect  to  it  the  legislature  did  not  follow  any  re- 
quirement of  the  constitution,  or  that  in  any  other  respect  the  act 
was  not  constitutionally  adopted,  the  courts  may  act  upon  the  evi- 
dence and  judge  the  statute  void. 

VETO. — In  order  to  pass  a  bill  in  the  legislature  over  the  governor's  veto, 
the  bill  must  receive  two  thirds  of  the  votes  of  the  members  actu- 
ally present.  Two  thuds  of  those  voting  are  not  sufficient,  if  other 
members  are  present. 

MANDAMUS. — Where  the  county  superintendent  of  public  schools  refuses 
to  pay  over  money  belonging  to  any  district,  or  to  make  the  proper 
order  for  the  application  of  such  money,  the  proper  proceeding  of 
the  party  aggrieved  is  by  writ  of  mandamus. 

VESTED  RIGHTS. — Even  where  the  legislature  so  changed  the  boundaries 
of  counties  that  a  school  district  formerly  belonging  to  one  is  sub- 
sequently embraced  in  the  other  county,  if  school  moneys  have, 
prior  to  the  passage  of  such  act,  become  due  from  the  former  county 
to  such  district,  said  district  has  a  vested  right  therein,  and  a  writ 
of  mandamus  will  lie  to  compel  the  payment  thereof. 

ERROR  to  the  District  Court  for  Albany  County. 
The  opinion  sufficiently  states  the  case. 


86  BROWN  v.  NASH.  [Sup.  Ct. 


Argument  for  Plaintiff. 


M.  C.  Brown,  plaintiff  in  error,  in  person,  contended  that 
by  stipulation  on  file  the  only  question  to  be  determined 
by  the  court  was :  Did  Council  File  No.  15,  entitled  a  bill 
for  an  act  to  define  the  boundaries  of  Laramie  county,  as 
printed  in  the  printer's  volume  of  the  statutes  of  the  sec- 
ond session  of  the  legislature  of  Wyoming  territory,  become 
a  law  by  its  passage,  notwithstanding  the  veto  of  the  gov- 
ernor ? 

In  this  connection  it  is  well  to  examine  the  character  of 
the  "  veto  "  popularly  and  erroneously  so  called,  but  more 
properly  designated  by  the  word  "  negative."  See  1  Kent, 
249,  250,  251  and  note  a  ;  also  second  subdivision  sec.  7,  art. 
1,  Const.  U.  S. ;  also  1  Story's  Com.  sees.  883  to  891. 

It  appears  by  reference  to  the  organic  act  of  Wyoming, 
section  6,  that  the  legislative  power  of  the  territory  shall 
extend  to  all  rightful  subjects  of  legislation,  consistent  with 
the  provisions  of  this  act  and  the  constitution  of  the  United 
States.  It  is  clear  that  the  establishment  of  municipal  cor- 
porations and  the  definition  of  their  boundaries  is  a  rightful 
subject  of  legislation ;  and  it  will  be  observed  that  the  pre- 
vious territorial  legislature  never  defined  the  boundaries  of 
Laramie  county,  so  that  at  the  time  of  the  passage  of  the 
act  in  question  there  was  actually  no  such  political  corpora- 
tion as  Laramie  county  designated  by  law,  and  yet  in  sec- 
tions 7  and  15  of  the  organic  act  the  division  of  the  territory 
into  counties  is  plainly  intended  to  be  made. 

The  negative  of  the  governor  renders  a  two  thirds  vote 
necessary  to  enact  a  la\v  against  it :  Organic  Act,  section  6. 
Who  shall  decide  whether  the  bill  passed  over  the  veto  or 
negative  by  the  requisite  vote  ?  This  language,  controlling 
the  action  after  veto  of  the  governor,  is  precisely  that  used 
respecting  the  president's  exercise  of  the  same  prerogative. 
Let  us  examine  the  parallel.  The  constitution  does  not  say 
whether  the  vote  of  two  thirds  of  each  house  on  the  recon- 
sideration of  a  bill  returned  by  the  president  with  objec- 
tions shall  be  two  thirds  of  the  members  elected  or  two 
thirds  of  the  members  present.  It  is  understood  that  the 


July,  1872.]  BROWN  v.  NASH.  87 

Argument  for  Plaintiff. 

latter  construction  has  been  adopted  in  practice :  1  Kent, 
250,  note  b. 

So  that  it  becomes  necessary  to  inquire  who  are  "pres- 
ent" in  the  meaning  and  usage  of  parliamentary  law ;  cer- 
tainly those  who  are  without  the  bar  of  the  house  are  "ab- 
sent," and  in  the  national  congress  would  not  count  in  a  two 
thirds  or  any  other  vote :  Bare.  Dig.  168  ;  Rules  30  and  31 
of  House  of  Representatives,  and  note  thereto. 

Had  the  house  of  representatives  of  this  territory  the 
power  to  make  rules  defining  its  quorum  and  its  mode  of 
procedure  ?  Most  assuredly  it  did  so :  See  House  Journal, 
1871,  p.  28,  rule  I.  "  A  majority  of  the  house  shall  consti- 
tute a  quorum."  A  quorum  was  present. 

Also  House  Journal,  1871,  p.  33,  rule  39,  "  The  ayes  and 
nays  shall  be  taken,  etc.,  etc.  Every  member  within  the 
bar  shall  vote  when  his  name  is  called,  unless  for  special 
reasons  he  be  excused."  If  a  majority  were  present  the 
quorum  was  there,  and  unless  the  persons  excused  should 
reduce  the  number  voting  below  a  quorum,  no  earthly  rea- 
son exists  why  the  ones  excused  from  voting  are  not  in  effect 
absent  as  completely  as  those  who  are  physically  without 
the  bar  of  the  house,  so  far  as  official  action  is  concerned. 
It  is  a  grave  question  whether  the  courts  have  power  to  go 
behind  the  printed  statutes  to  determine  a  question  of  this 
character,  which  is  in  its  nature  a  question  of  parliamentary 
practice. 

In  the  third  of  Gray's  Reports,  468,  it  is  said  in  substance  : 
"  The  Massachusetts  house  of  representatives  possess  inher- 
ently, and  without  constitutional  expression,  the  power  to 
expel  a  member  ;  and  the  court  cannot  inquire  how  they  ex- 
ercised that  right  nor  their  reasons  for  exercising  it,  nor 
whether  the  member  had  an  opportunity  to  be  heard  in  his 
defense  before  expulsion.  See  also,  Cooley's  Const.  Li  in. 
141 :  "  A  simple  majority  of  a  quorum  is  sufficient  for  the 
passage  of  any  particular  law,  unless  the  constitution  fixes 
some  other  rule,  and  where  by  the  constitution  a  two  thirds 
or  three  fourths  vote  is  made  essential  to  the  passage  of  any 


BROWN  v.  NASS.  [Sup.  Ct. 


Argument  for  Plaintiff. 


particular  class  of  bills,  two  thirds  or  three  fourths  of  a 
quorum  will  be  understood,  unless  it  is  expressly  declared 
that  this  proportion  of  all  the  members,  or  of  all  those 
elected,  shall  be  requisite." 

In  New  York  the  two  thirds  or  three  fifths  vote  required 
for  the  passage  of  certain  bills,  is  declared  by  the  constitu- 
tion of  New  York  to  be  "that  proportion  of  all  those 
elected."  See  to  the  same  effect,  Andersonv.  Dunn,  6  Wheat. 
204 ;  also  a  strong  case,  where  it  is  held  that  "  the  courts 
have  no  power  to  go  behind  the  printed  statutes  to  pass 
upon  the  action  of  the  legislature,"  is  the  B.  $  N.  F.  Rail- 
road v.  City  of  Buffalo,  5  Hill.  509  ;  and  in  Mayor,  eta.,  v. 
Harwood,  3  Am.  Rep.  161,  it  is  declared  "that  no  evidence 
was  admissible  to  show  that  all  of  an  act  of  the  legislature 
was  not  included  in  the  bill  signed  by  the  Governor"  ;  and  in 
Hunt  v.  Van  Ahtyne,  etc.,  25  Wend.  608,  it  is  held  that  the 
legislative  body  is  the  proper  tribunal  to  determine  the  pas- 
sage of  its  bills,  subject  only  to  an  appeal  to  the  people.  In 
3d  Ohio  State  Rep.  484,  in  Gibson  v.  The  State,  the  court 
says :  "  True,  the  courts  are  made  the  judges,  in  the  last 
resort,  of  the  constitutionality  of  all  laws  ;  and  as  before  re- 
marked, where  a  statute  is  on  its  face  strictly  unconstitu- 
tional, it  is  their  duty  so  to  declare  it ;  but  it  does  not  neces- 
sarily follow  that  they  are  authorized  to  supervise  every  step 
of  legislative  action  and  inquire  into  the  regularity  of  all 
legislative  proceedings  that  result  in  laws." 

Concerning  the  rules  governing  the  courts  in  adjudicating 
laws  to  be  unconstitutional,  and  the  care  necessary  for 
judges  to  exercise  in  approaching  such  a  consideration,  and 
the  delicacy  with  which  such  considerations  have  always 
been  undertaken,  see  Cooley's  Const.  Lira.  159,  ch.  7,  the 
whole  of  which  is  replete  with  sound  reasoning,  and  sup- 
ported by  strong  citations.  In  other  cases  in  New  York, 
reported  in  8  N.  Y.  and  4  Hill,  and  referred  to  in  appel- 
lee's brief,  it  will  be  observed  that  the  courts  exam- 
ined the  journals  to  see  if  they  show  "  a  two  thirds  vote  of 
all  the  members  elected  by  the  people,"  that  being  a  con- 


July,  1872.]  BROWN  v.  NASH.  89 

Argument  for  Plaintiff. 

stitutional  provision,  and  also  whether  the  bills  was  certi- 
fied by  the  presiding  officers,  that  being  also  a  constitutional 
provision,  while  no  such  provisions  are  found  in  the  organic 
act,  that  instrument  only  requiring  "  two  thirds  of  the  house  " 
to  vote. 

Clearly  the  term  "house"  means  such  number  as  it  may 
by  rule  prescribe.  "  House  "  means  a  quorum ;  seven 
members  are  a  majority,  and  a  quorum,  two  thirds  of  that 
number,  may  pass  over  the  voto ;  or  else  the  majority  of 
that  number  could  pass  no  bill  or  perform  no  legislative  act 
of  any  kind :  Cooley's  Const.  Lim.  141.  This  argument 
would  be  incomplete  without  referring  to  the  danger  that 
exists  of  the  court  going  beyond  its  jurisdiction  in  assum- 
ing to  pass  upon  the  manner  in  which  a  co-ordinate  branch 
of  the  government  may  discharge  its  functions.  Of  the 
power  of  courts  to  pass  on  the  question  as  to  the  matter  of 
legislative  enactments,  which  has  been  declared  by  the  leg- 
islative branch  of  the  government  to  be  existing  laws,  and 
to  determine  whether  they  accord  with  the  constitution,  no 
doubt  exists.  But  can  the  courts  go  further,  and  control 
legislative  discretion  and  the  manner  in  which  laws  shall 
be  passed  ?  If  so,  where  will  the  court  stop  ? 

Upon  the  question  of  the  disposition  of  courts,  being 
lawyers,  to  naturally  tend  to  enlarge  their  jurisdiction,  it 
may  not  be  idle  to  recur  to  the  opinion  of  Mr.  Jefferson : 
See  Jefferson's  Complete  Works,  p.  462  of  sixth  volume,  and 
pp.  183,  177,  298,  of  seventh  volume.  In  the  letters  of 
Mr.  Jefferson,  so  cited,  may  be  found  admonitions  that 
ought  to  sink  deep  in  the  mind  of  every  judge,  and  while 
his  views  have  not  obtained  in  all  their  strictness  on  the 
point  as  to  the  power  of  courts  to  declare  laws  unconstitu- 
tional, they  are  yet  worthy  of  the  careful  consideration  of 
all  jurists  who  have  any  respect  for  our  theory  of  govern- 
ment and  any  desire  to  protect  eacli  of  its  co-ordinate  branches 
against  any  unwarrantable  encroachment  on  the  part  of  either 
of  the  others. 


90  BROWN  v.  NASH.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

W.  W.  Corlett  and  8.  W.  Downey,  for  defendant  in  error, 
contend : 

I.  That  the  bill  in  question,  having  been  vetoed  by  the 
governor,  it  must  have  been  passed  in  each  house  by  a  two- 
thirds  vote  of  each  house  respectively  to  become  a  law :  See 
sections  four  and  six  of  the  act  of  congress,  organizing  the 
territory  of  Wyoming. 

II.  The  courts  have  the  right  and  power  to  determine  for 
themselves,  whether  or  not  any  bill  has  been  passed  by  the 
requisite  vote  to  become  a  law:  See  Cooley's  Const.  Lim. 
135,  140,  141 ;  2  Am.  R.  430 ;  1  Denio,  9 ;  4  Hill,  384 ;  8  N. 
Y.  317  ;  14  Gray,  238. 

III.  As  to  what  constitutes  a  two  thirds  vote  of  each  house, 
see  subdivision  two,  of  section  six,  article  one,  of  the  con- 
stitution of  the  United  States,  and  compare  the  same  with 
section  six  of  the  organic  act  of  Wyoming  territory ;  also  see 
sections  35  and  37,  142-3  of  Jefferson's  Manual ;  also  Bare. 
Dig.  214 ;  14  Gray,  238 ;  1  Kent.  250,  note  b. 

By  the  court,  FISHER,  C.  J.  This  was  an  action  brought 
from  the  district  court  of  Albany  county,  at  the  March  term, 
1872,  on  an  appeal  from  a  decree  of  said  court,  awarding  a 
peremptory  mandamus  to  compel  the  defendant  in  the  court 
below,  and  now  plaintiff  in  error,  to  pay  over  to  the  peti- 
tioner the  sum  of  two  hundred  and  seventy-eight  dollars  and 
eighteen  cents,  being  the  balance  due  on  a  warrant  drawn 
on  M.  C.  Brown,  as  superintendent  of  schools  for  Albany 
county,  by  the  president  and  secretary  of  the  school  district 
number  two  of  Albany  county,  consisting  of  the  village  or 
district  of  Sherman.  The  whole  amount  due  to  said  district 
as  set  apart  for  its  use  by  the  said  M.  C.  Brown,  as  such 
superintendent  as  aforesaid,  was  three  hundred  and  sixty 
dollars  and  sixty-eight  cents,  which  sum  the  said  district 
number  two,  was  entitled  to  receive  out  of  the  money  ap- 
propriated for  school  purposes.  That  some  time  after  the 
said  sum  of  three  hundred  and  sixty  dollars  and  sixt}'-eight 
cents  was  so  appropriated,  a  warrant  was  drawn  by  A.  J. 


July,  1872.]  BROWN  v.  NASH.  91 

Opinion  of  the  Court — Fisher,  C.  J. 

Nash,  treasurer  of  school  district  number  two,  which  was 
duly  signed  by  the  president  and  countersigned  by  the  clerk, 
and  presented  to  M.  C.  Brown,  as  superintendent,  and  a 
part  payment  made  to  wit,  in  the  sum  of  eighty-two  dollars 
and  fifty  cents,  and  a  credit  for  that  amount  marked  on  the 
back  of  the  warrant.  And  it  is  further  alleged,  and  is  not 
denied  that  the  said  M.  C.  Brown  refused  to  pay  afly  further 
sum  on  account  of  the  said  appropriation.  Application  was 
then  made  to  the  district  court  for  an  alternate  writ  of  man- 
damus to  compel  the  said  M.  C.  Brown  to  pay  the  balance 
of  said  appropriation.  The  alternate  writ  was  granted  at 
the  March  term  of  the  court  for  Albany  county,  by  Chief 
Justice  Fisher,  and  made  returnable  on  the  eighth  day  of 
said  month  of  March,  directing  him  to  pay  the  sum  claimed 
to  be  due,  or  show  cause  why  he  has  not  done  so. 

On  the  eighth  day  of  March  an  answer  to  the  alternate 
writ  of  mandamus  was  filed  by  M.  C.  Brown,  setting  forth 
his  reasons  why  he  had  refused  and  still  did  refuse  to  pay 
over  the  said  balance,  to  wit :  "  That  the  plaintiff  should  not 
have  his  peremptory  writ  of  mandamus,  because  that  the 
territorial  legislature  at  its  last  session,  which  convened  at 
the  city  of  Cheyenne,  the  capital  of  the  territory  of  Wyo- 
ming, on  the  sixth  day  of  November,  1871,  passed  a  certain 
bill  entitled,  an  act  defining  the  boundaries  of  Laramie 
county.  That  said  act  originated  in  the  territorial  council, 
was  duly  passed  by  said  council,  afterwards  was  passed  by 
the  house  of  representatives,  and  presented  to  the  governor 
for  his  approval ;  that  it  was  not  signed  by  the  governor,  but 
was  by  him  returned  with  his  objections,  within  the  time 
designated  by  the  original  act,  to  the  council  said  bill  hav- 
ing there  originated ;  that  the  bill  then  passed  the  council 
by  a  two-thirds  vote  of  the  members  thereof,  and  became  a 
law,  so  far  as  that  body  was  concerned,  the  objections  of 
the  governor  to  the  contrary  notwithstanding. 

That  afterwards  the  said  bill  was  duly  transmitted  to  the 
house  of  representatives  with  the  governor's  objections,  and 
on  the  question  being  submitted  to  the  house :  Shall  the  bill 


92  BROWN  v.  NASH.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

pass,  the  objections  of  the  governor  to  the  contrary  not- 
withstanding ?  there  were  seven  members  of  the  house  who 
voted  aye,  three  voted  no,  two  were  absent  and  one  ex- 
cused. The  speaker  of  the  house  then  declared  the  bill 
passed,  the  objections  of  the  governor  to  the  contrary  not- 
withstanding. The  bill  was  afterwards  duly  returned  to 
the  proper*  committee  of  the  legislature  and  delivered  to  the 
secretary  of  the  territory,  was  placed  on  file  by  him,  and  so 
became  a  law  of  said  territory. 

And  further  in  answer,  the  said  defendant,  M.  C.  Brown, 
says,  that  by  the  terms  of  said  bill  the  town  of  Sherman, 
school  district  No.  2,  became  a  part  of  Laramie  county,  and 
is  now  by  a  law  of  said  territory  a  part  of  Laramie  county, 
and  by  reason  thereof  not  entitled  to  receive  any  school 
money  in  the  hands  of  the  superintendent  of  schools  for  the 
county  of  Albany. 

By  an  extract  from  the  journal  of  the  proceedings  of  the 
house  of  representatives  of  the  legislature  of  Wyoming,  it 
appears  that  when  the  question  of  the  passage  of  the  bill 
was  about  to  be  taken,  Mr.  Sheeks  the  speaker  of  the  house, 
asked  to  be  excused  from  voting;  that,  on  motion  of  Mr. 
Clark,  a  member  of  the  house,  Mr.  Sheeks  was  excused. 
That  the  yeas  and  nays  being  called  resulted  as  follows  : 
Yeas :  Messrs.  Blair,  Castle,  Clark,  Friend,  Kuykendall, 
Talbot  and  Wilson — 7.  Nays  :  Messrs.  Brown,  Dayton  and 
Hayley — 3.  Absent  :  Messrs.  Nickerson  and  Pease — 2. 
Excused :  Mr.  Speaker. 

After  argument  by  counsel  for  and  against  the  writ  being 
made  peremptory,  Kingman,  J.,  who  was  presiding  instead 
of  Fisher,  C.  J.,  awarded  a  peremptory  writ  of  mandamus 
as  prayed  for.  The  case  as  presented  to  us  raises  several 
questions,  among  which  are  :  1.  Have  the  courts  power  to  go 
behind  the  printed  volume  of  the  laws  of  the  territory,  duly 
certified  by  the  territorial  secretary,  to  ascertain  whether 
these  laws  were  passed  in  accordance  with  the  provisions  of 
the  act  o  f  Congress  organizing  the  territory  of  Wyoming  ?  2. 
If  the  courts  have  such  power,  was  the  act  entitled  "  an  act 


July,  1872.]  BKOWN  v.  NASH.  93 

Opinion  of  the  Court — Fisher,  C.  J. 

defining  the  boundaries  of  Laramie  county,"  passed  in  such 
manner  as  to  constitute  it  one  of  the  laws  of  Wyoming  ter- 
ritory ?  and,  3.  Should  the  peremptory  wiit  of  mandamus 
have  been  allowed? 

That  the  courts  have  the  power  to  examine  the  journals 
of  the  legislature  to  see  whether  the  requisite  forms  of  leg- 
islation have  been  observed  in  the  passage  of  laws,  is  a 
question  which  has  arisen  in  several,  if  not  all  of  the  states 
of  the  Union ;  and  wherever  it  has  arisen  it  has  been  deter- 
mined in  the  affirmative,  and  if  had  not  been  raised,  it 
strikes  us  that  it  would  require  but  a  superficial  view  of  the 
question  to  determine  the  propriety  of  the  course.  While 
there  are  recognized  in  our  form  of  government  in  the 
United  States  and  in  the  several  states  three  several  co-or- 
dinate branches,  viz. :  the  executive,  legislative  and  judicial, 
it  seems  to  us  that  the  latter  branch  is  invested  with  the 
power  of  the  execution  of  the  laws,  and  at  the  same  time 
given  the  power  to  examine  whether  the  laws,  as  passed  by 
the  legislative  branch  and  approved  by  the  executive,  come 
in  conflict  with  the  organic  law  of  the  state  or  not ;  and  if 
they  do,  it  becomes  their  duty  to  point  out  such  conflict,  so 
that  the  defect  may  be  remedied  by  subsequent  legislation. 
That  the  courts  have  exercised  such  a  prerogative  may  be 
seen  in  the  cases  cited  in  Cooley's  Constitutional  Limita- 
tions, p.  135,  where  the  author  uses  this  language  :  Each 
house  keeps  a  journal  of  its  proceedings,  which  is  a  public 
record,  and  of  which  the  courts  are  at  liberty  to  take  judicial 
notice.  If  it  should  appear  from  these  journals  that  any  act 
did  not  receive  the  requisite  majority,  or  that  in  respect  to 
it  the  legislature  did  not  follow  any  requirement  of  the  con- 
stitution, or  that  in  any  other  respect  the  act  was  not  con- 
stitutionally adopted,  the  courts  may  act  upon  the  evidence 
and  adjudge  the  statute  void :  referring  to  Spanyler  v. 
J.mobs,  14  111.  297:  Mllgr  v.  Staff,  3  Ohio  N.  S.  475  ;  P,-o- 
l>l'  v.  Mahoney,  13  Mich.  481  ;  Southwark  Bank  v.  Common- 
wealth, 2  Pa.  446.  The  same  doctrine  .was  held  in  the  cases 
of  Ilapendhtfi  v.  Haiijlit,  39  Cal.  189;  Debord  v.  People,  1 
Denio,  9  ;  4  Hill,  -38,  and  a  large  number  of  other  cases. 


94  BKOWN  v.  NASH.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

The  second  point  raised  in  the  argument  of  this  case  is 
one  which  presents  a  point  remarkable  for  the  delicacy  of 
its  distinctions,  and  it  is  one  on  which,  after  a  diligent 
search,  we  have  been  unable  to  find  a  precedent.  It  is  a 
question  as  to  what  constitutes  two  thirds  of  a  legislative 
body  under  peculiar  circumstances. 

From  an  examination  of  the  journal  of  the  house  of  rep- 
resentatives of  the  territory  at  the  time  the  bill  in  question 
was  under  consideration,  after  it  had  been  returned  by  the 
governor  with  his  objections,  it  appears  that  there  were 
eleven  members  present  up  to  the  time  that  the  vote  was 
about  to  be  taken ;  that  the  speaker,  for  some  reason  un- 
known to  us,  requested  to  be  excused  from  voting,  which 
request  was  granted,  the  roll  was  then  called  and  the  yeas 
and  nays  recorded.  Under  ordinary  circumstances  the  fail- 
ure of  the  speaker  to  respond  would  be  a  satisfactory  con- 
clusion that  he  was  absent,  and  that  there  being  three  mem- 
bers above  the  number  required  to  constitute  a  quorum,  two 
thirds  of  the  members  present  having  voted  in  favor  of  the 
passage  of  the  bill  over  the  veto  of  the  governor  would  leave 
no  doubt  that  it  received  the  requisite  vote  to  give  it  the 
force  and  sanction  of  a  law,  as  much  as  though  it  had  received 
a  unanimous  vote  of  the  house.  But  while  the  journal  of 
the  proceedings  of  that  day  shows,  that  although  the  speaker 
did  not  vote  on  the  passage  of  the  bill,  that  he  was  present 
for  all  other  purposes,  because  the  journal  shows  that  the 
speaker  arose  and  announced  the  passage  of  the  bill,  thus 
showing  his  actual  presence.  Now,  if  one  of  the  members 
on  the  floor  had  asked  to  be  excused,  and  had  been  so  ex- 
cused, there  would  perhaps  have  been  nothing  to  show  his 
presence,  and  the  vote  would  have  been  complete.  But  the 
speaker  having  made  the  request  places  the  question  in  an 
entirely  different  aspect.  There  is  a  question  which  arises 
incidentally  in  the  discussion  of  the  case  before  us,  and  al- 
though it  has  not  been  alluded  to  in  the  argument,  yet  it  is 
one  that  we  are  bound  to  take  notice  of,  because  the  journal 
of  the  house  has  been  referred  to,  and  we  have  been  asked 


July,  1872.]  BROWN  v.  NASH.  95 

Opinion  of  the  Court — Fisher,  C.  J. 

to  take  judicial  knowledge  of  the  fact,  and  that  is,  that  this 
law  never  was  asked  for  by  the  citizens  of  either  county,  but 
on  the  contrary,  after  the  bill  had  passed  both  houses  and 
had  gone  to  the  governor  for  his  approval,  a  petition  was 
presented  to  him  signed  by  a  large  number  of  the  citizens  of 
Sherman  (we  believe  by  a  majority  of  them),  asking  him  to 
return  it  with  his  objections. 

While  this  would  not  deprive  the  legislature  of  the  power 
to  pass  the  law,  nor  would  it  affect  its  validity  when  passed, 
it  seems  to  us  to  justify  us  in  holding  the  action  of  the 
legislature  to  strict  rules  of  construction.  This,  being  in 
our  view,  obligatory  upon  us,  compels  us  to  see  that  before 
the  interests  or  supposed  interests  of  any  portion  of  the 
citizens  are  affected,  that  the  forms  of  law  must  be  strictly 
complied  with.  Now  if  the  speaker  of  the  house  was  pres- 
ent, whether  he  voted  or  not,  there  were  eleven  members 
present,  and  it  would  require  more  than  seven  votes  to 
make  two  thirds.  The  law  is  not  that  one  third  voted 
against  the  bill,  but  it  is  that  two  thirds  of  the  members 
present  did  vote  for  it.  Now,  if  the  speaker  was  present, 
no  matter  whether  he  voted  for  it  or  not,  then  there  were 
eleven  members  present,  and  it  would  require  at  least  eight 
votes  to  constitute  two  thirds ;  if  he  was  absent,  then  there 
were  but  ten  votes,  and  seven  would  be  two  thirds.  If  then 
the  speaker  was  absent,  how  could  he  immediately  after  the 
reading  of  the  votes  by  the  clerks,  announce  that  the  bill 
had  passed,  the  objections  of  the  governor  to  the  contrary 
notwithstanding  ?  So  that  it  appears  to  us  very  clearly  that 
this  law  was  not  passed  in  accordance  with  the  provisions 
of  the  constitution  of  the  United  States,  or  the  organic  act 
of  this  territory,  from  the  fact  not  that  it  did  not  receive 
two  thirds  of  the  votes  recorded,  but  that  it  did  not  receive 
the  votes  of  two  thirds  of  the  members  present,  and  there- 
fore is  not  one  of  the  laws  of  the  territory. 

The  third  question  raised  is,  should  the  peremptory  writ 
of  mandamus  have  been  allowed  ?  From  what  we  have  said 
above,  we  are  clearly  of  the  opinion  that  the  order  of  the 


96  UNION  PACIFIC  R.  R.  Co.  v.  CARR.     [Sup.  Ci. 


Points  decided. 


court  in  allowing  the  writ  was  right,  but  if  there  should  be 
any  doubt  in  our  minds  upon  the  point  discussed,  there  is 
another  consideration  which  fully  warrants  us  in  concluding 
that  the  writ  should  have  been  allowed,  and  is  that  the 
division  of  the  school  fund  had  been  made  previous  to  the 
passage  of  this  law,  defining  the  boundary  of  Laramie  county, 
the  portion  belonging  to  school  district  No.  2  had  become 
vested,  a  portion  of  it  had  been  paid,  and  all  of  it  had  be- 
come due  and  payable ;  and,  in  our  opinion,  belonged  to  that 
district,  and  to  no  other  person  or  place,  and  the  superintend- 
ent of  schools  for  Albany  county  should  have  paid  the  bal- 
ance due,  and  his  failure  to  perform  that  duty  was  good 
grounds  upon  which  to  justify  the  officers  of  the  district  in 
applying  for  the  remedy  provided,  and  they  having  made  the 
application,  it  became  the  duty  of  the  court  to  enforce  the 
payment  by  its  writ  of  mandamus. 
The  proceedings  are  approved. 


THE  UNION  PACIFIC  RAILROAD  COMPANY,  A  COR- 
PORATION, v.  GARR,  SHERIFF  AND  EX  OFFICIO  COLLECTOR 
OF  THE  COUNTY  OF  LARAMIE,  AND  BOSWELL,  SHERIFF 

AND  EX  OFFICIO  COLLECTOR  OF  THE  COUNTY  OF  ALBANY. 

INJUNCTION — COLLECTION  OF  TAXES. — Where  the  collection  of  illegal 
taxes  against  a  railroad  company  may  work  an  irreparable  injury, 
an  injunction  against  the  collector  and  other  county  officials  will  be 
granted. 

POWER  OF  COUNTY  OFFICERS. — In  the  territory  of  Wyoming,  where  a 
question  arises  as  to  the  line  between  different  counties  and  the  as- 
sessment of  property  upon  the  territory  in  dispute,  the  board  of 
county  commissioners  or  the  board  of  equalization  of  either  of  the 
counties  interested,  is  not  a  proper  or  competent  tribunal  to  decide 
in  which  county  a  person  or  corporation  shall  pay  taxes. 

PRACTICE. — Under  such  circumstances  an  application  by  bill  of  com- 
plaint by  the  taxpayer  to  a  court  of  chancery,  for  an  order  that  the 
parties  in  interest  interplead,  and  for  a  perpetual  injunction  against 
those  in  error,  is  a  proper  course. 

VETO. — In  order  to  pass  a  bill  in  the  legislature  over  the  governor's  veto, 
the  bill  must  receive  two  thirds  of  the  votes  of  the  members  actually 
present;  two  thirds  of  those  voting  is  not  sufficient  if  other  mem- 
bers are  present. 


July,  1872.]  UNION  PACIFIC  R.  R.  Co.  v.  OAR*.  97 


Statement  of  Facts. 


THIS  cause  came  to  this  court  in  accordance  with  the  fol- 
lowing stipulation : 

It  is  agreed  by  and  between  the  parties  to  the  above  enti- 
tled cause  as  follows : 

1.  That  an  appearance  shall  be  entered  by  the  said  de- 
fendants respectively  in  said  cause,  without  process  issuing, 
on  or  before  the  eleventh  day  of  November,  A.  D.  1872,  and 
that  the  said  defendants  on  or  before  said  date  plead,  an- 
swer or  demur,  or  file  exceptions  to  the  bill  of  complainant 
herein,  and  that  the  said  complainant  file  a  replication,  if  he 
so  desires,  in  said  cause  on  or  before  said  date ;  2.  That  a 
certified  copy  of  all  the  papers  and  proceedings  in  the  cause 
be  transmitted  by  the  clerk  of  said  court  and  register  in 
chancery  therein,  to  the  clerk  of  the  supreme  court  of  said 
territory,  to  be  filed  in  said  supreme  court  on  said  eleventh 
day  of  November,  1872;  3.  That  all  the  issues  in  this  cause 
be  heard,  argued  and  determined,  and  tlutt  final  order  and 
decree  be  made  and  entered  in  said  cause  by  said  supreme 
court,  in  all  respects  the  same  and  witli  the  same  force  arid 
effect  as  though  the  said  cause  had  been  regularly  and  duly 
taken  to  said  supreme  court  by  appeal  at  the  adjourned  ses- 
sion of  said  supreme  court,  commencing  on  said  eleventh 
day  of  November,  A.  D.  1872. 

The  bill  of  complaint  alleged  the  following : 

That  the  complainant  was  a  corporation  owning  and  run- 
ning a  railroad  and  telegraph  line  through  the  two  counties 
above-mentioned.  That  the  said  territory  of  Wyoming  and 
the  said  counties  of  Laramie  and  Albany  claimed  the  right 
to  assess  and  collect  taxes  for  territorial  and  county  pur- 
poses upon  the  property  of  complainant,  the  said  railroad 
and  telegraph  line,  and  upon  the  road-bed,  rolling  stock, 
depots,  buildings,  and  other  property  used  in  operating  and 
running  complainant's  said  railroad,  and  have,  from  time  to 
time,  so  levied  and  assessed  and  collected  taxes  from  the 
complainant  therefor.  That  at  the  first  session  of  the  legis- 
lative assembly  of  Wyoming  territory,  begun  and  held  in 
the  city  of  Cheyenne,  on  the  twelfth  day  of  October,  A.  D. 
7 


UNION  PACIFIC  R.  R.  Co.  -v.  CARE.      [Sup.  Ct. 


Statement  of  Facts. 


1869,  a  bill  was  passed  and  beeame  a  law,  entitled  "  An  act 
to  establish  the  boundary  lines  of  Albany  county  and  for 
the  appointment  of  officers  therein."  That  in  and  by  said 
act  the  eastern  boundary  line  of  said  Albany  county,  which 
adjoins  said  Laramie  county  on  the  west,  was  fixed  at  a 
point  on  complainant's  said  railroad,  known  as  Buford  sta- 
tion. That  by  virtue  of  said  act  the  property  of  complain- 
ant in  said  territory  has  been,  from  time  to  time,  assessed 
for  the  purposes  of  taxation  by  said  Laramie  county  from 
the  eastern  boundary  line  of  said  territory  to  said  Buford 
station,  a  distance  of  sixty-nine  miles.  And  by  said  Albany 
county  from  said  Buford  station  on  the  east,  westwardly 
to  the  eastern  boundary  line  of  Carbon  county,  a  distance 
of  ninety-five  and  one  half  miles.  That  at  the  second 
session  of  the  legislative  assembly  of  the  said  territory, 
begun  and  held  at  Cheyenne,  on  the  seventh  day  of  No- 
vember, A.  D.  1871,  a  bill  was  passed  and  became  a  law, 
or  so  it  was  represented  to  complainant,  entitled,  "  An 
act  defining  the  boundaries  of  Laramie  county."  That 
in  and  by  said  act  the  western  boundary  of  said  Laramie 
county  was  fixed  at  a  point  on  complainant's  said  railroad, 
known  as  the  center  of  Dale  Creek  bridge,  being  a  point 
on  complainant's  said  line  of  railroad,  about  nine  miles 
west  of  said  Buford  station.  That  the  effect  of  the  said 
law  was  to  include  within  the  limits  of  said  Laramie  county 
about  seventy-eight  miles  of  complainant's  said  railroad  and 
telegraph  line  ;  and  to  reduce  the  length  thereof  in  said 
Albany  county  to  a  corresponding  distance,  so  that  there 
remained  in  said  county  about  eighty-six  miles  of  com- 
plainant's said  railroad  and  telegraph  line.  That  when 
called  upon  to  list  its  property  for  taxation  in  said  counties 
of  Laramie  and  Albany,  for  the  year  A.  D.  1872,  the  com- 
plainant, relying  upon  the  provisions  of  the  said  act  of  the 
second  legislative  assembly  of  Wyoming  territory,  entitled, 
"  An  act  defining  the  boundaries  of  Lamarie  county,"  and 
believing  that  said  act  should  govern  its  return  to  the 
assessors  of  said  counties  of  Laramie  and  Albany,  made 


July,  1872.]  UNION  PACIFIC  R.  R.  Co.  v.  CABR.  99 


Statement  of  Facts. 


its  said  return  in  accordance  with  the  provisions  of  the 
said  act,  and  returned  as  property  subject  to  taxation  in 
said  Laramie  county,  the  railroad  and  telegraph  line  of  com- 
plainants, situated  between  said  Buford  station  and  the  said 
center  of  Dale  Creek  bridge,  together  with  the  depots,  wood 
stations,  water  stations,  round  house,  proportionate  value 
of  rolling  stock  and  other  property  therein,  all  being  of 
the  aggregate  value  of  eighty-four  thousand  six  hundred 
and  fifty-nine  dollars,  and  which  said  property  theretofore 
had  been  returned  for  the  purposes  of  taxation  in  said  county 
of  Albany. 

That  complainant,  in  making  return  of  its  property  in 
said  county  of  Albany,  deducted  from  the  aggregate  value 
of  its  property,  as  returned  to  the  assessor  of  said  county, 
the  valuation  of  said  property  situated  between  said  Buford 
station  and  the  said  center  of  Dale  Creek  bridge,  such  prop- 
erty amounting  to  the  valuation  aforesaid.  That  some  dis- 
pute having  arisen  between  said  counties  of  Laramie  and 
Albany  as  to  the  rights  of  each  under  said  law,  passed  at 
the  session  of  the  second  legislative  assembly  of  Wyoming 
territory,  and  it  being  claimed  by  said  Albany  county  that 
said  law  was  not  legally  and  properly  passed  by  said  legis- 
lative assembly,  and  in  consequence  thereof  that  the  said 
Buford  station  was  still  the  eastern  boundary  line  of  said 
Albany  county  at  its  point  of  crossing  complainant's  said 
line  of  railroad,  the  board  of  the  county  commissioners  of 
said  county  of  Albany,  acting  as  a  board  for  the  equalization 
of  taxes  in  that  county,  proceeded  to  assess  and  did  so  assess 
said  property,  so  as  aforesaid  mentioned,  as  being  situated 
between  said  Buford  station  and  said  center  of  Dale  Creek 
bridge  as  liable  to  assessment  and  taxation  in  the  county 
of  Albany,  fixing  the  valuation  at  eighty-four  thousand  six 
hundred  and  forty-nine  dollars,  and  levied  a  tax  thereon 
of  fifteen  mills  upon  the  dollar,  the  amount  of  said  tax 
being  one  thousand  two  hundred  and  sixty-nine  dollars  and 
seventy-three  cents. 

That  the  board  of  county  commissioners  of  the  county  of 


100  UNION  PACIFIC  R.  R.  Co.  v.  CARR.     [Snp.  Ct. 


Statement  of  Facts. 


Laramie  have  levied  upon  said  property  a  tax  of  twenty-six 
mills  on  the  dollar,  the  amount  of  said  tax  being  two  thou- 
sand two  hundred  dollars  and  eighty-seven  cents.  That  by 
reason  of  the  premises  the  said  property  of  complainant, 
situated  between  Buford  station  and  the  center  of  Dale  creek 
bridge,  and  of  the  assessed  valuation  of  eighty-four  thou- 
sand six  hundred  and  forty-nine  dollars,  was  assessed  for 
the  purposes  of  taxation  by  both  of  said  counties  of  Laramie 
and  Albany.  That  the  said  T.  Jeff.  Carr,  sheriff  and  ex 
officio  collector  of  Laramie  county  and  the  said  N.  K.  Bos- 
well,  sheriff  and  ex  offici.o  collector  of  Albany  county,  had 
each  demanded  of  complainant  the  amount  of  the  tax  levied 
upon  said  before-mentioned  property  by  their  respective 
counties,  and  that  each  claimed  the  right  to  collect,  and 
threatened  to  collect  the  same  by  levying  upon  and  selling 
certain  personal  property  of  complainant  necessary  to  the 
operation  of  said  road,  to  the  great  manifest  and  irreparable 
injury  of  complainant. 

The  bill  of  complaint  further  sets  forth  that  complainant 
was  ignorant  of  the  rights  of  the  said  counties  and  of  the 
said  collectors  thereof  in  the  premises,  and  had  requested 
the  said  counties  and  their  officers  to  take  such  action  as 
should  determine  their  rights  in  and  to  said  disputed  terri- 
tory, and  fix  and  determine  the  rights  and  liabilities  of  the 
complainant  in  paying  the  tax  either  to  said  county  of  Lar- 
amie or  to  said  county  of  Albany,  but  that  they  had  each 
wholly  failed  and  refused  so  to  do.  That  the  complainant 
had  no  interest  in  the  matter  in  controversy  between  the 
said  defendants  or  the  said  counties ;  but  by  reason  that 
they  persisted  in  their  several  adverse  claims,  and  that  com- 
plainant was  advised  that  it  could  not  safely  pay  the  same 
or  any  part  thereof  to  either  of  them,  though  it  was  ready 
and  willing  to  pay  either  of  said  amounts,  viz.,  two  thousand 
two  hundred  dollars  and  eighty-seven  cents,  or  one  thousand 
two  hundred  and  sixty-nine  dollars  and  seventy-three  cents, 
into  court  to  abide  the  judgment  thereof.  That  the  said  de- 
fendants ought  to  interplead  touching  their  respective  rights 


July,  1872.]  UNION  PACIFIC  R.  R.  Co.  v.  GARB.  101 


Statement  of  Facts. 


in  order  that  complainant  might  be  informed  to  whom  it 
should  pay  tax  upon  said  property,  and  that  they  and  each 
of  them  ought  to  be  restrained  by  the  order  and  injunction 
of  the  court  from  collecting  or  attempting  to  collect  said 
taxes,  or  from  commencing  any  suit  in  law  or  in  equity,  or 
prosecuting  the  same  against  complainant  in  respect  to  the 
matters  aforesaid. 

That  complainant  then  prayed  for  relief  in  accordance 
with  the  foregoing  statements  and  allegations,  and  a  tem- 
porary injunction  was  granted  by  one  of  the  justices  of  the 
supreme  court,  and  presiding  judge  of  the  first  district,  at 
chambers.  To  the  bill  of  complaint  the  defendant,  Carr, 
filed  a  general  demurrer. 

The  defendant,  Boswell,  filed  an  answer,  in  which,  after 
admitting  some  of  the  formal  allegations  contained  in  the 
bill,  denied  that  said  complainant  had  acted  in  accordance 
with  the  provisions  of  the  act  of  the  second  legislative  as- 
sembly aforesaid,  but  alleged  that  it  had  fully  returned  to 
the  assessor  of  the  county  of  Albany  the  property  mentioned 
and  set  forth  in  said  bill  of  complaint  as  being  situate  be- 
tween Buford  station  and  the  center  of  Dale  creek  bridge 
aforesaid. 

The  defendant,  Boswell,  in  his  answer,  further  states  that 
it  was  alleged  by  said  defendant  Boswell,  and  by  said  Albany 
county,  that  said  alleged  law  of  1871,  was  not  legally  and 
properly  passed  by  said  legislative  assembly,  and  that  the 
facts  in  relation  to  said  act  were  as  follows :  that  Hon.  S.  F. 
Nuckolls  introduced  into  the  council,  Council  File  No.  15 
entitled,  "  A  bill  for  an  act  defining  the  boundaries  of 
Laramie  county,  at  a  session  of  the  second  legislative  as- 
sembly of  Wyoming  territory,  begun  aud  held  in  the  city  of 
Cheyenne  on  the  seventh  of  November,  1871 ;  that  said  bill 
No.  15  passed  both  houses  of  the  legislative  assembly  on 
the  fifth  and  sixth  days  of  December ;  that  it  was  presented 
to  the  governor  of  said  territory  for  his  approval  and  signa- 
ture. That  on  the  thirteenth  of  the  same  month,  said  bill 
was  returned  to  the  council  by  the  governor,  with  his  veto. 


102  UNION  PACIFIC  li.  R.  Co.  v .  CARR.      [Sup.  Ct. 

Opinion  of  the  Court — Kingmau,  J. 

That  on  the  day  following  it  was  passed  by  the  said  council 
over  the  said  veto,  by  a  vote  of  seven  "  ayes  "  to  two  "  nays," 
and  was  then  sent  to  the  house  of  representatives,  and  on 
motion  was  there  put  upon  its  passage  "•  the  veto  of  the 
governor  to  the  contrary  notwithstanding."  Mr.  Sheeks,  the 
speaker,  being  present,  was  at  his  request  excused  from 
voting.  The  ayes  and  nays  were  then  taken  with  the  follow- 
ing result,  ayes,  seven  ;  nays,  three  ;  absent,  two  ;  present  but 
not  voting,  one.  The  speaker,  Mr.  Sheeks,  announced  the 
passage  of  the  bill  by  a  two-thirds  vote,  but  said  defendant 
alleged  that  the  same  had  not  been  passed  by  a  two-thirds 
vote,  and  that  said  bill  never  received  the  requisite  majority ; 
the  announcement  of  the  speaker  to  the  contrary  notwith- 
standing ;  that  said  bill  or  pretended  act  did  not  become  a 
law  of  the  territory  of  Wyoming,  and  that  in  consequence 
thereof  the  said  Buford  station  still  remained  on  the  eastern 
boundary  line  of  said  county  of  Albany,  at  its  point  of 
crossing  said  complainant's  line  of  railroad.  To  this  answer 
complainant  filed  a  general  replication. 

W.  R.  tSteele,  for  complainant. 
'     W.  W.  Corlett,  for  defendant  Carr. 
C.  W.  Bramel)  for  defendant  Boswell. 

By  the  Court,  KINGMAN,  J.  This  case  is  brought  before 
this  court  by  an  agreement  of  the  parties  in  writing,  in  which 
it  is  stipulated  that  all  the  issues  in  this  cause  be  heard, 
argued  and  determined,  and  that  final  order  and  decree  be 
made  and  entered  in  said  cause,  etc.  In  order  to  expedite 
business  and  save  expense  to  the  parties,  this  court  have 
consented  to  examine  the  various  questions  raised  in  the 
case,  and  to  make  a  final  disposition  of  them,  in  the  same 
manner  it  would  have  done  had  the  cause  been  tried  on  its 
merits  in  the  district  court,  and  regularly  brought  to  this 
court  by  appeal. 

We  have  already  decided  at  the  present  term  of  this  court, 


July,  1872.]  UNION  PACIFIC  R.  R.  Co.  v.  CARR.  103 

Opinion  of  the  Court — Kingman,  J. 

in  the  case  of  Nash  v.  Brown,  that  the  act  of  the  last  legis- 
lature, by  which  it  was  proposed  to  change  the  boundary 
line  between  the  counties  of  Laramie  and  Albany,  was  not 
legally  passed  over  the  veto  of  the  governor,  and  therefore 
never  became  a  law  of  this  territory.  This  was  the  princi- 
pal question  involved  in  the  present  case,  and  must  be  deci- 
sive of  them  all,  unless  as  is  contended  by  the  county  of 
Laramie,  the  railroad  company,  in  consequence  of  its  negli- 
gence or  mistake  of  the  law,  has  estopped  itself  from  setting 
up  any  defense  that  will  protect  it  from  paying  the  taxes 
assessed  in  both  the  defendants'  counties.  It  is  contended 
that  our  statutes  have  provided  a  tribunal  in  the  county 
board  of  equalization,  where  this  question  should  have  been 
heard  and  where  full  and  adequate  justice  might  have  been 
done,  and  as  the  plaintiff  has  neglected  to  apply  these  in 
due  season  he  is  now  without  remedy.  We  cannot  see  how 
the  county  board  of  equalization  in  either  of  the  counties 
could  have  acted  on  the  question  involved  in  this  case,  or 
how  the  railroad  company  could  have  acted  so  as  to  avoid 
meeting  this  precise  dilemma  in  one  or  the  other  of  these 
counties.  The  emergency  has  not  grown  out  of  the  action, 
or  the  want  of  action,  on  the  part  of  this  plaintiff,  but  is 
the  necessary  consequence  of  the  assertion  of  a  right  to  tax 
the  same  property  in  each  of  the  defendants'  counties.  This 
is  peculiarly  a  case  for  equitable  cognizance,  and  one  in 
which  an  order  to  interplead  would  seem  to  be  the  only  ade- 
quate remedy ;  and  upon  such  an  order  we  are  satisfied  that 
the  only  result  that  could  be  reached  would  be  a  decree  that 
the  railroad  company  pay  the  tax  as  assessed  in  the  county 
of  Albany,  and  that  the  county  of  Laramie  be  perpetually 
enjoined  from  collecting  or  attempting  to  collect  the  tax 
assessed  on  that  portion  of  the  plaintiff's  property  situate  in 
the  county  of  Albany,  and  that  each  party  pay  its  own  costs. 
And  it  is  so  decreed. 


REPORTS  OF  CASES 


DKTERMINED   IN 


THE   SUPREME   COURT 

OF 

WYOMING  TERRITORY. 
JULY  TERM,  1873. 


McGLINCHEY  v.  MORRISON. 

EVIDENCE. — The  best  evidence  which  the  nature  of  the  case  will  admit 
of,  and  which  can  be  obtained  by  the  party,  should  be  adduced. 

IDEM. — Secondary  evidence  should  never  be  admitted,  except  where  it 
is  impossible  to  procure  testimony  of  a  higher  and  better  character. 

IDEM. — A  copy  of  an  execution,  under  which  goods  have  been  levied 
upon,  made  from  memory,  although  verified,  is  inadmissible. 

APPEAL  from  the  District  Court  for  Sweetwater  County. 

The  opinion  contains  a  sufficient  statement  of  the  facts  in 
this  case. 

W.  W.  Corlet.t,  for  appellant,  made  the  following  state- 
ments and  citations  :  In  this  case  there  are  but  two  errors 
assigned  which  it  is  necessary  for  the  court  to  consider ;  for 
although  the  overruling  of  the  defendant's  motion  for  a  new 
trial  is  assigned  as  an  error  of  the  court  below,  still,  as  the 
motion  for  a  new  trial  is  based  solely  upon  errors  of  the 
court  during  the  trial,  it  is  only  necessary  to  consider  the 
two  errors  alleged  to  have  occurred  during  the  trial. 

I.  The  error  assigned  is  found  on  the  twenty-seventh 

105 


106  McGLINCHEY  v.  MOKKISON.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

page  of  the  transcript  on  file  in  this  cause,  and  relates  to 
the  exclusion  of  the  sworn  copy  of  an  execution  offered  in 
evidence  by  the  defendant  in  the  court  below ;  upon  this 
point  reference  is  made  to  the  following  authorities :  1 
Phil,  on  Ev.  489 ;  2  Phil,  on  Ev.  chap.  5 ;  1  Greenl.  on  Ev. 
628. 

II.  The  second  error  assigned  is  found  on  the  twenty- 
ninth  page  of  the  transcript  filed  herein,  and  relates  to  the 
instructions  given  by  the  court  to  the  jury,  in  which  the 
court  charged  the  jury  that  there  was  no  such  evidence  be- 
fore the  jury  as  would  justify  them  in  finding  that  the  de- 
fendant took  the  goods  under  an  execution.  Upon  this 
point  reference  is  made  to  the  following  authorities :  1 
Wait's  Dig.  127 ;  4  E.  D.  Smith,  276 ;  47  Barb.  388,  501 ; 
16  Johns.  348;  18  Id.  544;  20  Wend.  555;  1  Denio,  520; 
3  Gra.  &  Wat.  768. 

Amos  Steck,  for  appellee. 

By  the  Court,  FISHER,  C.  J.  (THOMAS,  J.,  dissenting.) 
This  was  an  action  in  replevin,  brought  by  the  plaintiff 
against  the  defendant,  who  was  sheriff  of  Sweetwater  county, 
to  the  June  term,  A.  D.  1871.  At  the  June  term,  A.  D.  1872, 
the  case  was  tried  before  Mr.  Justice  Carey,  and  a  verdict 
rendered  by  the  jury  in  favor  of  the  plaintiff,  finding  the 
right  to  the  possession  of  the  property  in  him,  and  assessing 
his  damages  at  twenty-five  cents. 

The  only  error  complained  of  and  relied  upon  by  the  de- 
fendant, who  is  the  appellant,  was  to  the  charge  of  the  court 
to  the  jury.  The  record  of  the  evidence  is  that  on  the  trial 
of  the  cause  it  was  shown  that  a  judgment  had  been  ob- 
tained in  Laramie  county  against  one  Luke  Joice,  upon 
which  judgment  an  execution  was  placed  in  the  hands  of 
the  defendant  in  this  action,  who  proceeded  to  levy  on  the 
stock  of  goods  in  the  possession  of  Joice,;  but  that  before 
the  said  levy  was  made  the  plaintiff  gave  notice  to  the  sher- 
iff that  the  said  stock  of  goods  belonged  to  him  and  not  to 


July,  1873.]       MCGLIKCHEY  v.  MORRISON.  107 

Opinion  of  the  Court — Fisher,  C.  J. 

Joice.  Upon  the  trial  the  defendant  gave  these  and  other 
matters  in  evidence  and  offered  a  copy  of  the  alleged  exe- 
cution made  out  by  himself  from  recollection,  which  was 
objected  to  by  plaintiff's  counsel  and  rejected  by  the  court. 
After  the  evidence  had  been  submitted  and  the  cause  argued 
by  counsel,  the  court  charged  the  jury  as  follows  : 

1.  That  "  the  plaintiff  must  recover  on  the  strength  of  his 
own  title." 

2.  "  If  the  sale  to  Morrison  was  secret,  and  the  goods  re- 
mained in  the  possession  of  the  vendor,  the  sale  was  void 
as  to  creditors." 

3.  That  there  was  no  such  evidence  before  the  jury  that 
would  justify  them  in  finding  that  the  defendant  took  the 
goods  under  an  execution,  as  alleged  in  the  defendant's  an- 
swer. 

To  which  third  and  last  instruction  the  defendant  then 
and  there  excepted,  and  assigned  said  instructions  as  error. 
We  fail  to  discover  any  error  in  the  instruction  complained 
of.  It  is  a  well  settled  rule  of  evidence  that  a  party  must 
make  out  his  case  by  the  best  evidence  which  can  be  had. 
In  this  case  a  certified  copy  of  the  record  of  the  judgment, 
or  at  least  of  the  execution  (the  judgment  having  been  ob- 
tained and  execution  issued  from  Laramie  county),  would 
have  been  perhaps  the  best  evidence,  or  a  compared  copy 
might  possibly  have  been  resorted  to ;  but  we  cannot  under- 
stand how  it  could  be  insisted  upon  that  months  after  a  levy 
had  been  made,  and  the  execution  returned,  the  sheriff 
could  from  memory  make  out  a  paper  and  swear  that  it  was 
a  copy  of  an  execution  upon  which  he  had  levied  on  a  stock 
of  goods  and  made  his  return. 

The  judgment  is  affirmed. 


108  WILSON  v.  BANK  OF  CHEYENNE.       [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

WILSON  v.  THE  FIRST  NATIONAL  BANK  OF 
CHEYENNE. 

NATIONAL  BANK  STOCKHOLDER. — The  stockholder  of  a  national  hank 
has  legal  capacity  to  sue  such  corporation  for  misappropriation  of 
the  stockholder's  funds,  and  for  other  causes. 

IDEM. — A  corporation  being  a  legal  entity,  as  such,  distinct  from  its 
members,  incorporators,  or  stockholders,  it  follows  that  each  or  all 
of  them  may  have  grievances  redressed  by  actions  at  law  or  pro- 
ceedings in  chancery,  as  any  creditor  not  occupying  that  relation. 

EKROR  to  the  District  Court  for  Laramie  County. 

This  action  was  brought  upon  a  petition  containing  the 
following  allegations :  1.  That  the  defendant  was  a  corpor- 
ation duly  organized  under  the  general  banking  act  of  con- 
gress and  acts  amendatory  thereof ;  2.  That  on  February  21, 
1871,  at  Cheyenne,  the  plaintiff  delivered  to  the  defendant 
five  thousand  dollars  ;  3.  That  in  consideration  thereof  said 
defendant  agreed  with  and  promised  plaintiff  to  appropriate 
the  same  to  the  payment  of  fifty  per  centum  of  one  hun- 
dred shares  of  the  capital  stock  of  the  said  First  National 
Bank  of  Cheyenne,  for  which  said  plaintiff  had  therefore 
subscribed  as  one  of  the  shareholders  of  said  banking  cor- 
poration ;  4.  That  the  defendant  failed  to  perform  such 
agreement  and  diverted  said  five  thousand  dollars  to  other 
purposes,  to  plaintiff's  damage  of  four  thousand  dollars,  to 
recover  which  this  action  was  brought. 

To  said  complaint  the  defendant  filed  a  demurrer,  stating 
the  following  grounds  :  1.  That  the  plaintiff  had  not  the 
legal  capacity  to  sue  ;  2.  That  the  petition  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 

Which  demurrer  was  sustained  by  the  district  court  of 
the  first  judicial  district,  at  the  November  term,  1872,  the 
cause  now  coming  to  this  court  on  plaintiff's  petition  in 
error. 

E.  P.  Johnson,  for  plaintiff  in  error. 

The  errors  assigned  are:  1.  That  the  court  erred  in  sus- 


July,  1873.]  WILSON  v.  BANK  OF  CHEYENNE.  109 


Argument  for  Plaintiff  in  Error. 


taining  the  demurrer ;   2.  That  the  court  erred  in  giving 
judgment  against  the  plaintiff.     Plaintiff  claims  : 

I.  That  a  corporation  is  a  person  in  law  with  the  same 
rights  to  sue  and  be  sued  as  other  persons,  and  stands  on  an 
equal  footing  with  them,  in  respect  to  liability  to  respond 
in  a  civil  action  for  damages  for  breach  of  contracts,  and  the 
commission  of  torts.     The  above  proposition  is  considered 
fundamental  and  too  well  established  to  require  the  support 
of  authorities. 

II.  That  the  act  creating  the  defendant  in  this  case,  or 
under  which  it  is  organized,  confers  upon  it  no  immunities 
and  charges  it  with  no  liabilities  other  or  greater  than  those 
recognized  in  the  law  generally  applicable  to  corporations, 
although  it  does  increase  the  liability  of  stockholders. 

III.  The  corporation  being  a  legal  entity,  as  such  distinct 
from  its  members,  incorporators   or  stockholders,  it  follows 
that  each  or  all  of  them  may  have  grievances  redressed  by  ac- 
tions at  law,  or  proceedings  in  chancery,  as  any  creditor  not 
occupying  that  relation :  Angell  and  Ames  on  Corp.  413  ; 
Smith  v.  Poor,  40  Maine,   415 ;  French  v.  Fuller,  23  Pick. 
108 ;    Wilson  v.  Rogers,  Sup.  Ct.  Wyoming. 

IV.  While    the   banking   act   requires    a   portion  of  the 
capital  stock  to  be  paid  in  before  it  commences  business, 
yet  before  such  payment  the  bank  is  fully  organized  and  in 
existence  as  a  person  in  law,  and  as   such  it  possessed  no 
power  to  compel  Wilson  to  pay  his  assessment,  nor  was 
Wilson  under  any  legal  obligation  to  do  so  ;   he  might  have 
refused  to  pay,  and  refused  thereby  to  become  a  stockholder, 
and  the  bank  would  have  been  compelled  to  sell  the  stock 
to  other  parties  at  public  auction.     The  payment  by  Wilson 
was  therefore  a  sufficient  consideration  to  support  the  con- 
tract in  reference  to  the  appropriation  of  the  money.     As  it 
must  be  conceded  that  if  the  bank  has  any  power  over  its 
own  property  it  can  contract  with  reference  to  the  same. 

V.  Rights  of  action  by  or  against  a  bank,  are  not  incidents 
or  appurtenances  of  the  stock,  and  in  no  case  would  such 
rights  of  action  for  breach  of  contract  or  the  right  of  a 


110  WILSON  v.  BANK  OF  CHEYENNE.       [Sup.  Ct. 

Opinion  of  Fisher,  C.  J.,  dissenting. 

stockholder   to  receive   damages  therefor  pass   to   another 
purchasing  the  stock. 

VI.  The  question  as  to  whether  plaintiff  was  allowed  to 
control  his  stock,  and  how  or  in  what  manner  damages  arose 
by  reason  of  the  alleged  breach  of  contract  are  not  pertinent 
to  the  issue  in  this  case.  So  also  the  question  as  to  whether 
a  depositor  must  make  demand  before  bringing  suit. 

W.  K.  Steele,  for  the  defendant  in  error,  contended  for  the 
points  raised  in  defendant's  demurrer. 

By  the  COURT.  There  are  but  two  questions  to  be  con- 
sidered in  this  case,  and,  as  with  all  questions  of  demurrer, 
facts  outside  of  the  pleading  cannot  be  regarded.  We  are 
of  the  opinion,  in  the  first  instance,  that  the  fact  of  the 
plaintiff  having  subscribed  to  the  capital  stock  of  the  First 
National  Bank,  defendant,  did  not  debar  him  from  bringing 
an  action  against  the  same  for  breach  of  contract,  and  that 
a  stockholder  certainly  has  the  rights  of  action  against  a 
corporation  that  are  possessed  by  a  corporation  against  any 
of  its  stockholders :  2.  We  believe  that  the  allegations  con- 
tained in  the  plaintiff's  petition  are  sufficient,  if  proved,  to 
entitle  said  plaintiff  to  recover  thereon. 

The  judgment  of  the  court  below  is  therefore  reversed, 
with  costs  against  the  defendant,  and  twenty  days  are  given 
defendant,  from  the  filing  of  this  opinion,  to  answer  in  the 
district  court. 

FISHER,  C.J.,  dissenting:  The  opinion  filed  by  the  major- 
ity of  this  court,  although  styled  per  curiam,  is  so  remark- 
able in  its  character  that  I  cannot  permit  it  to  pass  into  the 
future  without  entering  my  solemn  protest.  I  cannot  per- 
mit its  paternity  to  rest  at  my  door,  and  therefore,  without 
taking  time  to  enlarge  upon  what  I  conceive  to  be  its  errors, 
simply  give  a  very  few  reasons  for  dissenting.  There  are 
several  reasons  why  the  action  of  the  district  court,  in  sus- 
taining the  demurrer  to  plaintiff's  petition,  should  have  been 
affirmed : 


July,  1873.]    WILSON  v.  BANJC  OF  CHEYENNE.  Ill 

Opinion  of  Fisher,  C.  J.,  dissenting. 

1.  The  petition  does  not  set  out  the  fact,  if  it  be  a  fact, 
that  the  plaintiff  was  a  stockholder  at  the  time  he  brought 
his  suit.      If  he  was  not,  he  had  no  cause  of  action,  or, 
rather,  he  had  not  the  legal  capacity  to  sue.     In  the  argu- 
ment upon  the  demurrer,  it  was  admitted  that  the  stock  re- 
ferred to  had  been  set  aside  to  him,  and  became  his  prop- 
erty in  accordance  with  the  terms  upon  which  he  had  paid 
over  the  money,   that  he  had  shortly  afterwards  sold  the 
shares  of  stock  thus  purchased,  and  in  so  doing  he  trans- 
ferred all  the  right  thereto  to  the  person  to  whom  the  stock 
was  transferred. 

2.  The  national  banking  law  provides  specific  remedies 
for  persons  who  have  sustained  losses  by  any  national  bank, 
hence  he  must  seek  his  remedy  in  the  manner  thus  provided. 

3.  If  the  plaintiff  had  sustained  any  loss  by  the  misap- 
propriation of  his  funds  his  remedy  would  lie  against  the 
directors,  through  whom  the  loss  occurred,  in  the  private 
capacity,  and  not  against  the    bank,  or  even  against  the 
directors  in  their  official  position  :  See  Muse  on  Banking, 
450-452. 

If  this  last  position  is  correct,  and  I  do  not  see  how  it  can 
be  successfully  controverted,  then  the  plaintiff  had, brought 
his  action  wrongfully,  and  the  demurrer  should  have  been 
and  was  properly  sustained.  One  of  the  judges  who  ren- 
dered the  opinion  of  the  majority  of  the  court  admitted, 
during  the  argument,  and  announced  his  opinion  accom- 
panying the  decision,  that  from  his  knowledge  of  the  facts 
the  plaintiff  could  not  recover,  not  having  the  right  of  action, 
nevertheless  he  united  with  the  other  judge  in  reversing  the 
action  of  the  district  court.  To  me  this  does  not  look  con- 
sistent. 

I  content  myself  with  entering  upon  the  record  this  dis- 
senting opinion,  trusting  to  the  future  either  to  be  sustained 
or  not,  as  the  case  may  be. 


112  KINSLER  v.  TERRITORY  OF  WYOMING.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

KINSLER  v.  THE  TERRITORY  OF  WYOMING. 

CHALLENGING  JUKOBS. — Where  the  statutes  prescribe  fully  and  dis- 
tinctly the  qualifications  of  jurors  and  the  points  upon  which  they 
may  be  interrogated  by  counsel,  questions  as  to  entirely  different 
matters  are  not  permissible. 

SENTENCE. — Where  a  defendant  under  an  indictment  for  felony  has 
been  irregularly  sentenced,  the  proper  course  is  to  again  pass  sen- 
tence upon  him  in  due  form. 

IDEM. — If  the  court  fails  to  interrogate  the  prisoner,  before  passing 
sentence,  as  to  whether  he  has  anything  to  say  why  sentence  should 
not  be  passed  upon  him,  such  failure  furnishes  no  ground  for  a  re- 
versal of  judgment,  especially  as  the  supreme  court  must  impose 
the  sentence  de  novo. 

ERROR  to  the  District  Court  for  Lafamie  County. 

The  writ  of  error  in  this  case  was  prosecuted  by  Toussaint 
Kinsler,  the  defendant  below,  to  reverse  the  judgment  of 
the  district  court  of  the  first  judicial  district  for  the  county 
of  Laramie,  at  the  November  term,  1872,  of  such  court,  in 
a  cause  wherein  the  said  Kinsler  was  indicted  for  murder  in 
the  first  degree,  for  the  killing  of  one  Adolph  Pinea,  and  at 
the  same  term  of  court,  tried,  found  guilty  as  charged  in 
the  indictment  and  sentenced  to  suffer  the  extreme  penalty 
of  the  law.  The  affidavit  referred  to  in  the  brief  of  the 
plaintiff  in  error,  is  one  made  by  his  counsel  to  the  effect 
that  the  plaintiff  in  error  had  not,  before  his  trial,  been 
served  with  a  true  copy  of  the  indictment,  as  provided  by 
the  laws  of  the  territory  of  Wyoming. 

W.  H.  Miller,  for  plaintiff  in  error. 

The  first  error  assigned  upon  the  record  is,  that  the  duly 
certified  transcript  of  all  the  proceedings  in  said  cause  in 
the  court  below,  shows  that  there  were  two  different  sen- 
tences imposed  upon  this  plaintiff  in  error,  and  upon  two 
different  days ;  first,  upon  the  fourth  day  of  December, 
1872,  upon  motion  of  the  prosecuting  attorney,  sentence 
was  pronounced  by  the  court  in  the  following  words  and 
figures : 


July,  1873.]  KINSLER  v.  TERRITORY  OP  WYOMING.         113 

Argument  for  Plaintiff  in  Error. 

"  The  sentence  of  the  court  is,  that  you,  the  defend- 
ant Toussaint  Kinsler,  be  taken  hence  to  some  secure  place, 
until  Thursday,  the  second  day  of  January,  A.  D.  1873,  and 
then  to  be  hanged  by  the  neck  until  you  are  dead." 

On  the  fifth  day  of  December,  1872,  the  plaintiff  in  error 
was  again  brought  before  the  court,  and  then  and  there 
another  and  a  different  sentence  was  imposed  upon  him,  in 
words  and  figures  as  follows  : 

"  The  sentence  of  the  court  is,  that  you,  Toussaint  Kinsler, 
be  taken  hence  to  the  prison  whence  you  came,  to  be  there 
kept  in  the  custody  of  the  sheriff  of  Laramie  county,  until 
the  day  of  execution,  and  that  on  Thursday,  the  second  day 
of  January,  A.  D.  1873,  within  the  walls  of  the  prison  of  said 
county,  or  within  an  inclosure  to  be  provided  for  the  pur- 
pose, in  accordance  with  the  requirements  of  the  laws  of 
this  territory,  between  the  hours  of  twelve  o'clock  M.  and 
two  o  clock  p.  M.  of  said  day,  you  be  then  and  there  hanged 
by  the  neck  until  you  are  dead." 

It  is  material  that  it  should  appear  upon  the  record  that 
the  prisoner,  under  conviction  by  return  of  verdict  of  the 
jury,  when  the  punishment  is  death,  was,  before  receiving 
his  sentence  from  the  court,  interrogated  as  to  whether  he 
had  anything  to  say  why  judgment  of  death  should  not  be 
pronounced  on  him.  An  omission  is  fatal :  Bish.  Grim. 
Proc.  p.  865,  sec.  865,  and  notes  4  and  5 ;  Barb.  Grim.  Law, 
370 ;  Safford  v.  People,  4  Park.  470-479. 

The  record  in  this  cause  does  not  show  that  the  plaintiff 
in  error  was  thus  interrogated  at  the  time  of  passing  sen- 
tence by  the  court,  or  at  any  time  previous  thereto,  in  either 
of  the  above-mentioned  sentences. 

The  second  error  assigned  upon  the  record  is,  that  the 
court  overruled  the  objection  made  by  the  attorney  for  the 
plaintiff  in  error,  to  the  reading  of  the  indictment  in  this 
cause  to  the  jury,  in  the  progress  of  the  trial,  because  no 
copy  of  the  indictment  upon  which  the  cause  was  being 
tried  had  been  served  upon  Toussaint  Kinsler,  the  defend- 
8 


114  WILSON  v.  TERRITORY  OF  WYOMING.    [Sup.  Ct. 


Statement  of  Facts. 


ant  therein,  as  required  by  law,  or  in  the  manner  required 
by  law,  referring  to  the  record  of  affidavit  of  W.  H.  Mil- 
ler, cites  Grim.  Code  of  Wyoming  Ter.,  sees.  97,  109. 

The  offense  charged  upon  the  plaintiff  in  error  is  a  statu- 
tory one,  hence  in  all  the  steps  taken,  or  prescribed  by  the 
statute  to  be  taken  by  the  prosecution,  in  order  to  place  the 
defendant  in  an  indictment  on  trial,  the  law,  as  laid  down 
in  the  statute,  must  be  followed ;  and  no  defendant  in  a 
criminal  cause  can  be  called  on  by  the  court  to  answer  to  an 
indictment  for  felony,  nor  can  he  be  compelled  to  answer  or 
to  be  arraigned  until  the  requirments  of  the  law  in  such 
cases  made  and  provided  are  complied  with,  and  in  all 
criminal  proceedings  everything  is  construed  most  favorably 
for  the  defendant  and  against  the  state :  Code  Crim.  Pro. 
483. 

W.  W.  Corlett,  for  defendant  in  error. 

Judgment  of  the  district  court  affirmed,  and  the  prisoner 
re-sentenced  by  the  supreme  court,  in  accordance  with  the 
provisions  of  the  statutes  of  the  territory  of  Wyoming. 


WILSON  v.  THE  TERRITORY  OF  WYOMING. 

CONTEMPT. — At  common  law  proceedings  for  contempt  cannot  be  re- 
viewed by  a  court  of  errors. 

IDEM. — The  legislature  only  can  give  a  defendant  in  such  proceedings 
the  right  to  appeal  or  to  a  writ  of  error. 

IDEM. — Where  in  such  a  case  a  writ  of  error  was  improperly  sued  out, 
a  motion  to  dismiss  the  proceedings  in  error  was  sustained. 

ERROR  to  the  District  Court  for  Laramie  County. 

This  was  a  proceeding  for  contempt  of  court,  instituted 
in  the  district  court  at  the  March  term,  A.  D.  1873,  against 
the  defendant  in  the  district  court,  now  plaintiff  in  error, 
wherein  he  was  charged  with  writing  and  publishing,  in  the 
"  Omaha  Daily  Herald,"  a  newspaper  published  at  Omaha, 


July,  1873.]  WILSON  v.  TERRITORY  OF  WYOMING.         115 

Argument  for  the  Motion. 

Nebraska,  but  having  circulation  within  the  jurisdiction  of 
said  court,  certain  scandalous  and  contemptuous  allegations, 
charges  and  expressions  in  reference  to  said  distiict  court 
and  the  judge  thereof.  After  hearing  and  consideration  of 
the  matter,  the  plaintiff  in  error  was  adjudged  guilty  of  con- 
tempt, and  was  fined  in  the  sum  of  five  hundred  dollars,  and 
ordered  to  be  confined  in  the  county  jail  of  said  county  un- 
til such  fine  and  the  costs  of  the  proceedings  were  paid. 
Afterwards,  the  plaintiff  in  error  obtained  leave  to  file  a  pe- 
tition in  error  in  the  case  in  this  court  from  the  chief  jus- 
tice, upon  which  a  summons  in  error  was  issued  and  served 
upon  the  attorney  of  record  for  the  defendant  in  error.  The 
attorney  for  the  defendant  in  error  then  filed  in  this  court 
the  following  motion : 

"  In  the  supreme  court,  Posey  S.  Wilson,  plaintiff  in  error, 
v.  The  Territory  of  Wyoming,  defendant  in  error.  Motion  to 
dismiss  the  proceedings  in  error  herein.  And  now  comes 
the  said  territory  of  Wyoming  by  its  attorney  in  this  behalf, 
W.  W.  Corlett,  and  appearing  specially  and  for  the  purpose 
of  this  motion  only,  moves  the  court  now  here  to  dismiss 
this  cause  and  all  the  proceedings  herein  from  this  court, 
for  the  reasons  :  1.  That  this  court  has  no  jurisdiction  of 
the  subject-matter  of  the  proceedings  in  error  or  of  the 
cause ;  2.  Because  this  cause  is  not  properly  brought  to  this 
court,  no  writ  of  error  having  issued  from  this  court,  and 
for  other  reasons  apparent  from  the  record  herein.  The 
Territory  of  Wyoming,  by  W.  W.  Corlett,  its  attorney." 

W.  W.  Corlett,  attorney  for  the  motion. 

A  motion  has  been  filed  in  this  cause  to  dismiss  this  proceed- 
ing in  error  for  want  of  jurisdiction.  It  therefore  becomes  im- 
portant to  first  determine  that  question,  because  the  objection 
is  predicated  upon  considerations  which  preclude  this  court 
from  taking  jurisdiction  under  any  circumstances  ;  in  other 
words,  the  objection  is  of  such  a  nature  that  no  consent  of  par- 
ties can  give  jurisdiction.  In  the  first  place,  no  statute  of  this 


116  WILSON  v.  TERRITORY  OF  WYOMING.    [Sup.  Ct. 

Argument  for  the  Motion. 

territory  allows  this  proceeding  in  error  to  be  prosecuted. 
The  code  of  criminal  procedure  of  this  territory  has  refer- 
ence only  to  ordinary  criminal  cases  prosecuted  by  indict- 
ment, tried  by  a  jury  in  the  ordinary  manner,  and  warrants 
or  permits  a  proceeding  in  error  and  a  bill  of  exceptions 
only  in  such  cases.  This  is  manifest  from  the  entire  crim- 
inal code,  and  more  especially  by  reference  to  the  following 
sections  of  the  code  of  criminal  procedure :  Laws  of  Wy- 
oming, A.  D.  1869,  to  wit,  109-119,  128,  129,  141,  145,  181, 
184,  188,  194,  195.  But  it  is  insisted  that  the  plaintiff  in 
error  is  entitled  to  this  proceeding  in  error  by  virtue  of  the 
ninth  section  of  the  organic  act  of  the  territory.  The  lan- 
guage of  the  organic  act  is  as  follows : 

"  Writs  of  error,  bills  of  exceptions  and  appeals  shall  be 
allowed  in  all  cases  from  the  final  decision  of  said  district 
courts  to  the  supreme  court,  under  such  regulations  as  may 
be  prescribed  by  law ;  but  in  no  case  removed  to  the  supreme 
court  shall  trial  by  jury  be  allowed  in  said  court." 

What  is  the  meaning  of  this  language?  Evidently  not 
that  writs  of  error,  bills  of  exceptions  and  appeals  shall  be 
allowed  in  all  cases  as  cumulative  remedies  for  the  review 
of  cases ;  for  such  an  interpretation  would  be  absurd.  Con- 
gress must  be  understood  as  having  used  these  terms  in  the 
sense  in  which  they  were  used  at  the  common  law,  and  by 
the  word  cases  must  be  meant  such  cases  as  those  several 
proceedings  for  review  were  applicable  to  at  the  common 
law.  Now  at  the  common  law  a  writ  of  error  would  lie  only 
in  a  common  law  case,  possessing  the  ordinary  incidents  of 
a  case  ;  bills  of  exceptions  did  not  lie  in  a  criminal  case  at 
common  law,  and  appeals  were  permitted  and  proper  for 
the  review  of  chancery  cases.  Hence,  congress  must  have 
designed  simply  that  these  several  remedies  should  be  al- 
lowed only  in  such  cases  as  were  reviewable  by  these  sev- 
eral methods  respectively  at  the  common  law.  As  it  can 
hardly  be  pretended  that  an  appeal  would  lie  in  this  case, 
and  as  a  bill  of  exceptions  has  another  office  than  that  of 


July,  1873.]  WILSON  t).  TERRITORY  OF  WYOMING.         117 

Argument  for  the  Motion. 

presenting  a  case  for  review,  in  the  sense  of  transferring  the 
record  from  one  court  to  another,  we  are  constrained  to  be- 
lieve that  if  a  case  can  be  brought  here  at  all  by  virtue  of 
said  provision  of  the  organic  act,  it  must  be  by  writ  of  error. 
The  question  then  is,  does  a  writ  of  error  in  such  a  case  lie 
at  common  law?  Did  congress  so  intend  in  view  of  its 
language  above  cited :  "  But  in  no  case  removed  to  the 
supreme  court  shall  trial  by  jury  be  allowed  by  said  court?" 

Upon  the  propositions  above  set  forth,  the  following 
authorities  are  cited :  Arch.  Grim.  Law,  vol.  1,723;  Ewing 
v.  Hollister,  7  Ohio,  138;  9  Ohio,  142-3;  1  Abb.  U.  S.  Pr. 
327, 337 ;  2  Abb.  U.  S.  Pr.  213 ;  3  Black.  Com.  406  ;  3  Whart. 
sec.  3049. 

And  it  is  further  to  be  observed  that  if  a  writ  of  error 
will  lie  in  such  a  case,  since  no  regulation  is  made  by  the 
statutes  of  the  territory  as  to  the  manner  of  allowing  the 
writ  in  such  a  case  as  this,  then  the  allowance  of  the  writ 
and  all  its  incidents  must  be  according  to  the  course  of  the 
common  law ;  the  proceedings  in  this  case  is  not  according 
to  the  course  of  the  common  law. 

It  having  been  agreed  upon  that  this  whole  case  should 
be  considered  at  one  hearing  for  convenience,  the  various 
errors  assigned  in  the  petition  in  error  herein  will  be  con- 
sidered in  their  order ;  but  with  the  distinct  understanding 
however,  that  this  course,  in  no  respect,  waives  any  objec- 
tion to  the  jurisdiction  of  this  court  to  review  the  case,  and 
while  the  defendant  in  error  does  not  object  to  an  opinion 
of  this  court  upon  the  merits  of  the  case,  yet  it  asks  for  no 
such  opinion  unless  required  to  a  decision  of  the  same  after 
adjudging  the  motion  to  dismiss  to  be  overruled.  The  de- 
fendant in  error  also  declines  to  consider  any  errors  assigned 
by  counsel  in  argument,  brief  or  assignment  of  errors,  unless 
the  same  were  assigned  in  the  petition  in  error,  filed  in  this 
court  by  leave. 

The  first  error  assigned  is,  that  the  court  erred  in  order- 
ing an  amended  rule  to  be  served  on  the  then  defendant, 
now  plaintiff  in  error.  In  the  first  place  it  is  to  be  observed 


118  WILSON  v.  TERRITORY  OF  WYOMING.    [Sup.  Ct. 

Argument  for  the  Motion. 

that  the  said  order  was  made  upon  the  motion  of  the  at- 
torney for  the  plaintiff  in  error.  Besides  no  exception  was 
taken  to  said  order,  and  the  said  order  could  in  no  manner 
prejudice  the  plaintiff  in  error. 

The  second  error  assigned  is,  that  the  court  erred  in  over- 
ruling the  motion  of  said  Wilson  to  discharge  the  amended 
rule,  and  in  making  the  rule  absolute,  and  in  ordering  the 
attachment  to  issue.  Upon  this  alleged  error  it  is  important 
to  refer  to  the  record,  as  the  argument  seems  to  be  based 
largely  upon  a  state  of  facts  and  premises  which  do  not 
exist  in  fact.  The  record  shows  that  before  the  said 
amended  rule  issued  an  affidavit  was  duly  filed,  setting  forth 
the  facts  upon  which  the  said  rule  did  issue.  Besides  the 
motion  to  discharge  said  amended  rule  was  overruled  upon 
its  own  merits,  and  did  not  assign  as  reasons  for  discharg- 
ing the  amended  rule  many  of  the  reasons  now  assigned  in 
plaintiff  in  error's  brief.  Upon  this  alleged  error  it  is 
argued  that  the  judge  of  the  court  below  should  not  have 
made  the  affidavit  upon  which  the  rule  issued.  No  authority 
for  this  ipse  dixit  is  cited,  besides  no  objection  of  that  nature 
was  taken  in  the  case  below.  As  to  the  balance  of  the  argu- 
ment on  this  alleged  error,  it  is  submitted  that  the  record 
shows  a  full  compliance  with  all  the  requirements  of  the  law. 

The  third  error  assigned  is  that  the  court  erred  in  over- 
ruling the  said  Wilson's  motion  to  suppress  the  interroga- 
tories filed.  As  this  is  a  question  which  must  be  deter- 
mined solely  upon  authority,  reference  is  made  to  the  fol- 
lowing: United  States  v.  Dodye,  2  Gall.  313:  Thornton  v. 
Davis,  4  Cranch,  500  ;  Pitman's  case,  1  Curt.  186  ;  People  v. 
Fea,  2  Johns.  290  ;  4  Black.  285. 

The  fourth  error  assigned  in  the  petition  in  error,  is  that 
the  court  erred  in  refusing  to  grant  the  motion  of  the  said 
Wilson  for  a  change  of  venue.  In  the  brief  and  argument, 
as  printed  and  furnished  to  the  attorney  for  the  territory, 
no  allusion  is  made  to  this  exception,  and  it  is  therefore 
inferred  that  said  exception  is  not  now  relied  on.  Whether 
it  be  well  taken  or  not  depends  upon  a  statutory  provision 


July,  1873.]  WILSON  v.  TERRITORY  OF  WYOMING.          119 

Argument  for  the  Motion. 

so  plain  that  even  a  wayfaring  man  need  not  err  in  the 
proper  interpretation  of  the  same :  see  Laws  of  Wyoming, 
1869,  p.  486,  sees.  115-118. 

The  fifth  and  last  exception  is,  that  the  court  erred  in  giv- 
ing judgment  for  the  said  territory,  when  it  ought  to  have 
been  given  for  the  said  Posey  S.  Wilson,  according  to  the 
law  of  the  land.  This  exception  is  a  sort  of  an  omnium 
(jatlierum,  and  might  be  held  possibly  to  reach  back  to  any 
errors  of  the  court  in  the  record,  substantially  enough  to 
affect  the  final  judgment,  if  proper  exceptions  were  taken 
thereto  at  the  time  and  the  exception  preserved.  But  as 
special  assignments  of  the  alleged  errors  occurring  up  to 
the  time  of  judgment  were  made,  it  may  be  fairly  presumed 
that  the  last  exception  does  not  include  any  proceeding 
prior  to  the  judgment  of  the  court  pronounced  upon  the  an- 
swers to  the  interrogatories. 

In  the  written  argument,  it  is  admitted  that  it  was  an 
offense  at  common  law  to  speak  or  write  contemptuously  of 
the  court  or  judges.  The  principle  here  conceded  is  too 
well  sustained  by  authority  to  derive  any  additional  strength 
from  the  concession.  But  it  is  denied  that  this  peculiar 
portion  of  the  common  law  is  in  force  in  this  country,  and 
especially  in  this  territory.  Upon  this  point,  reference  is 
made  to  the  ninth  section  of  the  organic  act  of  Wyoming; 
also,  as  bearing  upon  the  construction  of  this  section,  see 
case  of  Dumphy  v.  Kleinsmith,  11  Wall. ;  also,  Laws  of  Wy- 
oming, 292 ;  2  Bish.  on  Grim.  Law,  sees.  214-216 ;  People 
v.  Fea,  2  Johns.  290;  Republic*  v.  Oswald,  1  Dall.  319; 
Bayard  v.  Pasxmore,  3  Yeates,  438  ;  Hollingsworth  v.  Duance, 
3  Wall.  77,  102;  Bronsons  caw,  12  Johns.  460;  People  v. 
Freer,  1  Cai.  485,  518;  The  State  \.  Wilson  £  Shtrman,  Chi- 
cago Legal  News,  1872,  p.  85.  The  doctrine  of  the  preced- 
ing cases  is  so  well  established  that  legislation  has  been 
found  necessary  in  every  instance  to  abridge  the  power  of 
the  courts  over  the  subject  of  contempt:  Dunlap's  Laws  of 
U.  S.  804 ;  Laws  of  Penn.  1809. 

This  idea  seerns  to  have  impressed  itself  upon  the  minds 


120  WILSON  v.  TERRITORY  OF  WYOMING.    [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

of  the  counsel  for  the  plaintiff  in  error,  who  insist  that  by 
the  laws  of  Wyoming  the  subject-matter  of  contempt  is 
limited  in  this  territory.  Without  conceding  that  the  acts 
of  contempt  in  the  present  case,  or  at  least  some  of  them, 
fall  without  the  provisions  of  the  statute,  attention  is  in  the 
first  place  directed  to  the  fact  that  our  statute  does  not  con- 
tain any  words  of  express  limitation.  In  the  case  of  Dun- 
ham v.  The  State  of  Iowa,  6  Clark,  246,  under  a  similar 
statute,  the  court  refused  to  say  that  such  a  statute  would 
have  the  meaning  here  contended  for.  But  it  insisted  that 
the  legislature  has  no  power  to  restrict  the  authority  of  a 
court  to  punish  for  contempt.  The  power  of  a  court  to  pun- 
ish for  contempt  is  one  of  its  essential  attributes ;  without 
it  a  court  would  not  be  a  court  in  the  sense  of  being  a  co- 
ordinate branch  of  the  government:  U.  S.  v.  Hudson,  7 
Cranch,  32-4.  Opinion  by  Justice  Thornton,  in  the  case 
cited  in  the  Chicago  Legal  News,  supra;  2  Bish.  Cr.  Law, 
206,  note. 

If  then  the  power  to  punish  for  contempt  is  essential  to 
the  very  idea  of  a  court  of  justice,  understood  as  a  co- 
ordinate branch  of  the  government,  it  follows,  by  the  most 
unerring  principles  of  logical  deduction,  that  any  legisla- 
tion which  undertakes  to  limit  this  power  is  invalid  and  a 
nullity.  But  it  is  affirmed  upon  argument  that  the  plain- 
tiff, by  his  answers  to  the  interrogatories,  purged  himself  of 
the  contempts,  if  any  there  were,  by  disclaiming  any  inten- 
tional contempt  of  the  court  or  the  judge  in  his  official  capa- 
city. This  view  seems  to  be  taken  in  ignorance  of  the  well- 
settled  and  elementary  doctrine  of  the  law  that  a  free,  moral 
agent  is  conclusively  presumed  to  intend  the  natural  and 
probable  consequences  of  his  acts :  1  Greenleaf,  23  ;  State  v. 
Wilson,  2  Sherman  ;  1  Russell  on  Crimes,  658-660  ;  13  Wall. 
335. 

J.  B.  Brown  and  T.  J.  Street,  for  plaintiff  in  error,  con- 
tended that,  under  the  provisions  of  the  organic  act  of  the 
territory  of  Wyoming,  such  plaintiff  was  entitled  to  a  writ 


July,  1873. ]  BKENN AN  v.  H KENAN.  121 


Statement  of  Facts. 


of  error,  and  that  the  proceedings  in  the  district  court  were 
fatally  irregular. 

Motion    granted,   and    judgment   of    the   district  court 
affirmed. 


BRENNAN  v.  HEENAN. 

CHARGE  TO  THE  JURY. — VERDICT. — Courts  will  not  interfere  with  the 
verdict,  because  such  verdict  does  not  accord  with  the  exact  views 
of  the  case  taken  by  the  court,  of  the  preponderate  of  evidence, 
or  that  the  court  would  have  arrived  at  a  different  conclusion  from 
that  of  the  jury. 

IDEM. — Even  if  an  erroneous  charge  to  the  jury  has  been  given,  the  ver- 
dict will  not  be  disturbed  if  it  clearly  appears  that  no  injustice  has 
been  done,  or  that  the  jury  have  not  been  misled  thereby  in  the 
finding  of  such  verdict. 

APPEAL  from  the  District  Court  of  the  First  Judicial  Dis- 
trict for  the  County  of  Laramie. 

This  was  an  action  brought  by  Heenan  to  recover  judg- 
ment against  Brennan  in  the  district  court  of  Laramie 
county,  for  money  alleged  to  be  due  him  for  building  a  bil- 
liard hall  in  Cheyenne,  under  a  contract  with  Brennan.  A 
contract  was  made  in  writing  between  the  parties,  by  which 
plaintiff  bound  himself  to  build  a  house  according  to  its 
specifications.  Subsequent  to  the  making  of  the  contract, 
and  after  work  had  been  commenced  under  it,  certain  ad- 
ditions to  the  building  were  proposed  by  defendant  in  the 
district  court,  and  the  plaintiff  claimed  that  that  additional 
work  was  done  by  him  at  defendant's  request,  and  that  the 
same  in  all  amounted  to  three  thousand  eight  hundred  dol- 
lars, or  thereabouts,  which  defendant  promised  to  pay.  The 
defendant  in  his  answer  denied  any  indebtedness,  and  pleads 
payment ;  also  a  counter-claim  of  a  bar  bill ;  also  a  counter- 
claim for  damages  for  the  failure  of  defendant  to  complete 
the  building  in  accordance  with  the  specifications  of  his 
original  contract.  Defendant  also  in  his  answer  denies  that 
all  the  work  done  under  the  contract,  as  modified,  was  or- 


122  BKENNAN  v.  HEENAN.  [Sup.  Ct. 


Statement  of  Facts. 


dered  by  him,  or  that  any  of  it  was  done  by  virtue  of  an  ex- 
press contract,  and  that  the  price  of  any  of  it  was  agreed 
upon  beforehand.  The  testimony  of  the  respective  parties 
was  introduced  without  objections,  and  the  principal  errors 
assigned  in  the  supreme  court  relate  almost  exclusively  to 
the  charge  of  the  district  court,  which  was  as  follows  as  to 
the  points  in  question  : 

"  There  are  very  few  legal  points  involved  in  the  consid- 
eration of  this  case ;  *  *  *  the  evidence  is  very  contra- 
dictory, amounting  to  such  a  conflict  that  I  do  not  pretend 
to  be  able  to  reconcile  it;  I  therefore  submit  it  to  you  with 
the  remark,  that  if  you  cannot  come  to  a  conclusion  as  to 
the  facts  as  given  by  the  respective  parties,  that  you  will 
have  to  be  governed  by  the  weight  of  the  testimony.  It  is 
a  maxim  of  the  law  that  the  burden  of  proof  rests  upon  the 
one  who  is  supporting  the  affirmative  of  any  given  propo- 
sition ;  that  is,  that  before  a  plaintiff  can  recover  he  must 
make  out  at  least  a  prima  facie  case. 

"I  am  asked  by  the  counsel  for  the  plaintiff  in  this  action 
to  give  you  the  following  instructions :  Where  one  party  is 
indebted  to  another  on  several  contracts  or  items  of  account, 
it  is  his  right  and  privilege  in  making  a  payment  to  direct 
what  application  shall  be  made  of  the  same  with  reference 
to  the  several  items  of  indebtedness  ;  but  where  such  appro- 
priation is  not  made  by  the  debtor  at  the  time  of  payment, 
then  the  creditor  can  apply  the  money  received  to  the  pay- 
ment of  any  portion  of  the  indebtedness  he  may  choose. 

"This,  gentlemen,  is  the  law,  provided  the  facts  of  the 
case  are  such  as  to  render  the  instruction  asked-  for  appli- 
cable. But  before  the  payment  referred  to  can  be  applied 
to  the  payment  upon  the  verbal  contract,  you  must  be  satis- 
fied that  such  a  contract  was  made ;  and  then  before  it  can 
be  appropriated  to  the  payment  of  the  extra  work  it  must 
be  shown  that  the  extra  work  had  been  completed,  and  that 
in  consequence  of  that  extra  work  the  plaintiff  had  two  sepa- 
rate and  distinct  accounts  against  defendant. 

"I  am  further  asked  to  instruct  you,  that  under  the  origi- 


July,  1873.]  BKENNAN  v.  HEENAN.  "123 


Statement  of  Facts. 


nal  written  contract  between  the  plaintiff  and  defendant  in 
this  action,  the  plaintiff  was  bound  to  build  the  house  ac- 
cording to  plans  and  specifications  therein  contained  within 
six  weeks  from  the  twenty-fifth  of  April,  1872  ;  but  the  lim- 
itation as  to  time  applied  only  to  work  specified  in  the  con- 
tract, and  to  nothing  more ;  and  if  the  failure  to  finish  the 
building  within  that  time  was  caused  or  brought  about  by 
the  act  of  the  defendant  in  making  additions  to  the  build- 
ing, or  in  any  other  way,  he  is  himself  responsible,  and  can- 
not recover  damages  for  the  delay,  unless  it  shall  appear  that 
that  delay  was  unreasonable  under  the  modified  arrange- 
ment." 

The  court  further  instructs  the  jury,  "  That  the  plaintiff 
was  not  bound  to  do  any  other  work  within  six  weeks  from 
the  twenty-fifth  day  of  April,  1872,  except  that  specified  in 
the  original  written  contract,  without  having  first,  upon  a 
sufficient  or  good  consideration,  agreed  so  to  do.  Now,  if 
there  was  such  an  amount  of  extra  work  that  it  would  be 
impossible  to  complete  the  building  within  the  time  speci- 
fied in  the  written  contract,  then  the  plaintiff  would  be  re- 
leased from  the  fulfillment  of  that  portion  of  the  written 
contract  by  operation  of  law,  without  any  alteration  of  the 
written  instrument. 

"  But  it  is  for  you  to  consider,  under  the  evidence,  whether 
this  was  so  or  not;  you  will  bear  in  mind  that  the  state- 
ments of  the  parties  upon  this  point;  the  plaintiff  claims 
that  the  extra  work  extended  the  time,  while  it  is  in  evi- 
dence that  the  work  was  stopped  for  want  of  materials  ;  and 
further,  that  the  plaintiff  told  defendant  after  his,  defend- 
ant's return  from  Chicago,  that  he,  plaintiff,  would  have 
the  building  completed  within  the  contract-time,  notwith- 
standing the  past  delays.  With  regard  to  the  extra  work, 
you  will  recollect  the  conflicting  testimony;  plaintiff  alleg- 
ing that  he  was  to  have  a  definite  sum  for  the  cellar  wall  on 
the  east  and  north  sides  of  the  building,  and  a  reasonable 
allowance  for  the  western  wall  and  the  enlargement  of  the 
cellar,  while  the  defendant  denies  having  made  any  definite 


124  BRENNAN  v.  HEENAN.  [Sup.  Ct. 


Statement  of  Facts. 


bargain  for  any  portion  of  the  extra  work,  except  under  the 
contingency  that  Messrs.  Ellis  &  Hullburt  were  to  put 
up  a  building  and  use  his  wall,  paying  one  half  the  cost 
thereof. 

"  You  will  also  take  into  consideration  the  set-off,  claimed 
by  defendant,  who  alleges  that  the  building  does  not  cor- 
respond with  the  specifications  mentioned  in  the  contract 
in  several  particulars ;  that  the  building  was  not  as  high  as 
it  was  to  have  been  built ;  that  the  ceiling  is  not  as  high  as 
agreed  to,  and  that  the  roof  was  defective.  If  the  defend- 
ant had  refused  to  take  the  building  off  of  the  contractor's 
hands  for  these  reasons,  he  might  have  been  justified  in 
such  refusal ;  but,  having  accepted  the  building  without  any 
such  objections,  it  is  too  late  now  to  set  them  up.  With 
regard  to  the  insufficiency  of  the  roof,  it  was  the  duty  of  the 
defendant  to  require  the  plaintiff  to  put  the  roof  in  proper 
condition  at  his,  plaintiff's  expense,  and  if  he  failed  to  do 
so,  after  being  so  requested,  then  the  defendant  would  be 
justified  in  employing  some  one  else  to  do  it,  and  the  plain- 
tiff should  pay  the  cost  of  such  work.  On  the  question  of 
damages  on  account  of  delay,  there  is  no  fixed  rule  by 
which  you  can  be  governed.  No  doubt  the  defendant  sus- 
tained damages  by  reason  of  the  delay,  but  it  will  not  do  to 
fix  these  damages  by  the  amount  he  subsequently  received. 
This  standard  of  damages  would  be  too  indefinite.  I  will 
therefore  submit  the  case  to  you  under  the  evidence,  by 
which  you  must  be  governed,  and  you  will  have  to  try  to 
arrive  at  your  verdict  from  that  source,  if  you  can  so  recon- 
cile .the  statements  of  the  parties ;  and  if  you  cannot,  you 
will  bear  in  mind  what  I  have  before  stated — that  you  will 
find  where  the  preponderance  of  evidence  rests,  and  decide 
accordingly." 

To  all  of  which  charge  the  defendant  excepted,  and  also 
to  the  refusal  of  the  court  to  give  the  following,  which  was 
drawn  up  and  presented  to  the  court  by  defendant's  counsel: 
"  That  in  this  action  no  recovery  can  be  had  by  the  plaintiff 
for  the  reasonable  value  of  the  extra  work  alleged  to  have 


July,  1873.]  BRENNAN  v.  HEENAN.  125 

Argument  for  Appellant. 

been  performed  in  laying  the  foundation  of  the  building  in 
question  deeper  than  it  was  to  be,  under  the  written  con- 
tract given  in  evidence,  and  for  enlarging  the  cellar ;  but  if 
the  plaintiff  can  recover  for  such  extra  work,  he  must  re- 
cover according  to  the  express  agreement  of  the  parties,  and, 
if  he  recover  at  all,  he  must  recover  the  price  as  to  such 
extra  work,  fixed  by  the  parties  themselves.  That  the 
plaintiff  in  this  action  can  recover  nothing  for  the  reason- 
able value  of  the  work  of  enlarging  the  cellar,  mentioned 
in  the  evidence  before  them,  because  there  is  no  claim  for 
such  work  in  the  amended  petition,  and  no  proof  of  the 
reasonable  value  of  such  work.  That  in  this  action  the 
plaintiff  cannot  recover  for  the  reasonable  value  of  any  of 
the  extra  work,  alleged  to  have  been  performed  by  plaintiff 
for  defendant,  except  for  the  platform  and  the  extra  wall 
adjoining  Masten's  cellar,  because,  as  to  the  balance  of  the 
alleged  extra  work,  there  is  no  proof  before  you  as  to  the 
value  thereof." 

W.   W.  Corlett,  for  appellant. 

The  first  error  assigned,  and  relied  upon  by  the  appellant, 
relates  to  the  refusal  of  the  court  to  charge  the  jury  that  as 
to  the  extra  work  of  enlarging  the  cellar  and  laying  ad- 
ditional foundation.  The  request  to  charge  the  jury  on  the 
point  was,  in  substance,  that  no  recovery  could  be  had  by 
plaintiff  for  such  extra  work,  according  to  the  reasonable 
value  thereof,  but  that  the  recovery,  if  any  could  be  had, 
must  be  the  contract  price,  as  fixed  by  the  parties.  The 
only  testimony  showing  any  authority  whatever  for  doing 
that  work  is  that  of  Heenan  himself,  and  his  testimony  is 
that  a  fixed  price,  five  hundred  dollars,  was  agreed  on  for 
the  work.  It  hardly  needs  any  citation  of  authority  to  show 
that  when  parties  by  contract  fix  the  price  to  be  paid  for 
services,  that  price  as  fixed  must  govern,  and  not  the  rea- 
sonable value. 

The  second  error  assigned  is  the  refusal  of  the  court  to 
instruct  the  jury  that  no  recovery  in  the  action  could  be  had 


126  BRENNAN  v.  HEENAN.  [Sup.  Ct. 

Argument  for  Appellant. 

for  the  reasonable  value  of  the  work  of  enlarging  the  cellar, 
for  the  reason  that  no  claim  for  such  work  is  made  in  the 
petition,  and  there  is  no  proof  of  the  value  of  the  work. 

The  third  error  assigned  is  the  refusal  of  the  court  to 
charge  the  jury  that  no  recovery  in  the  action  can  be  had  for 
the  reasonable  value  of  any  of  the  extra  work,  except  for  the 
platform  and  the  extra  wall  adjoining  Masten's  cellar.  There 
was  no  evidence  before  the  jury  of  the  reasonable  value 
of  any  other  portion  of  the  extra  work.  The  five  following 
errors  assigned  refer  to  the  questions  raised  in  the  first 
three : 

The  eighth  exception  and  error  assigned  refers  to  the 
charge  as  to  the  question  of  damages.  This  instruction 
clearly  permits  the  jury  to  allow  a  reasonable  sum  for  the 
enlargement  of  the  cellar  and  portions  of  the  foundation 
walls,  and  hence  cannot  but  be  erroneous,  especially  as  the 
jury  are  allowed  to  give  what  from  the  evidence  is  right  for 
all  these  things. 

The  ninth  error  assigned  is  that  the  jury  were  told  in  sub- 
stance that  if  the  defendant  accepted  the  building  he  waived 
all  claim  for  damages  arising  out  of  the  imperfect  construc- 
tion of  the  building,  and  if  the  roof  leaked  he  had  no  claim 
for  damages  until  he  first  requested  the  plaintiff  to  repair 
the  roof.  A  recurrence  to  the  foundation  of  a  right  of  ac- 
tion must  satisfy  any  one  that  this  instruction  was  error. 

The  tenth  error  assigned  relates  to  that  portion  of  the 
charge  wherein  the  court  asserts  that  on  the  question  of 
damages  for  delay,  there  is  no  rule  by  which  the  jury  can  be 
governed. 

It  is  respectfully  submitted  that  for  all  actions  for  the 
breach  of  contract  the  measure  of  damages  is  a  rule  of  law, 
to  be  given  to  the  jury  by  the  court,  and  as  this  was  an 
action  on  breach  of  contract,  the  court  clearly  erred  in  in- 
forming the  jury  that  there  was  no  rule  by  which  they 
should  be  governed  :  See  Sedgwick  on  the  Measure  of  Dam- 
ages. 

The  eleventh  and  last  error  assigned,  is  the  refusal  of  the 


July,  1873.]  BRENNAN  v.  HEENAN.  127 

Argument  for  Defendant  in  Error. 

court  to  sustain  the  motion  for  a  new  trial.  Upon  the  ques- 
tion of  the  effect  of  erroneous  instruction  and  refusal  to  in- 
struct properly  when  requested,  see  3  Graham  &  Waterman 
on  New  Trial,  768  et  seq.  ;  7  B.  Monro  R.  193 ;  1  Pick.  206  ; 
2  Pick.  655,  665.  From  these  authorities  I  extract  this  as 
the  rule  when  erroneous  instructions  have  been  given: 
"  Though  the  verdict  of  the  jury  in  the  court  below  be  in 
accordance  with  the  opinion  of  the  appellate  court,  yet  if 
the  former  gave  erroneous  instructions  to  the  jury  as  to  the 
law,  so  that  it  is  not  entirely  certain  that  justice  has  been 
done,  the  latter  will  grant  a  new  trial :  "  Graham  &  Water- 
man, 768. 

JE.  P.  Johnson,  for  defendant  in  error,  contended : 

I.  Courts  in  which  cases  are  tried  do  not  interfere  with  a  ver- 
dict simply  because  it  is  not  in  accordance  with  their  views  of 
the  weight  of  evidence,  nor  because  they  would  have  arrived 
at  a  different  conclusion  from  that  of  the  jury,  but  only 
when  the  verdict  is  so  far  unsupported  by  evidence  as  to 
lead  to  the  conclusion  that  the  jury  acted  from  improper 
motives  or  misapprehension,  and  injustice  has  been  done  in 
consequence,  it  being  the  province  of  the  jury  to  weigh  the 
evidence:  Nash's  Plead,  and  Prac.  549;  3  Wat.  on  New 
Trials,  1231.  So,  also,  where  the  judge  who  presided  at 
the  trial  approves  the  verdict,  and  refuses.to  set  it  aside  on 
the  ground  that  it  is  not  supported  by  evidence,  appellate 
courts  exercised  the  power  with  still  greater  reluctance  and 
caution,  and  only  in  the  clearest  cases  :  3  Wat.  on  New 
Trials,  1213-1215,  1230.  While  in  many  cases  appellate 
courts  have  refused  to  exercise  the  power  at  all,  even  though 
it  is  clear  that  injustice  has  been  done :  3  Wat.  on  N.  T. 
1229,  1230. 

IF.  Although  there  be  error  in  the  charge  of  the  judge, 
yet  if  it  appears  from  the  record  that  no  injustice  has  been 
done  by  the  verdict,  and  that  the  jury  were  not  actually  mis- 
led to  the  injury  of  the  party,  against  whom  they  find  the 
error  in  that  case,  will  furnish  no  ground  for  disturbing  the 


128  BBENKAN  v .  HEENAN.  [Sup.  Ct. 

.Argument  for  Defendant  in  Error. 

verdict,  or  reversing  the  judgment:  3  Wat.  on  N.  T.  118, 
.717,  811. 

III.  It  appears  by  the  record  that  defendant  in  error,  in 
his  petition  in  the  court  below,  alleged  that  he  did  the  extra 
work  at  the  request  of  the  plaintiff  in  error ;  that  the  same 
was  worth  a  certain  sum,  which  plaintiff  in  error  promised 
to  pay.  Whereas,  in  his  testimony  it  appears  that  he  did 
the  work  mentioned  therein  for  a  price  agreed  upon  in  ad- 
vance with  the  exception  of  the  platform.  Plaintiff  in  error 
claims  a  variance  between  pleadings  and  proofs,  or  that  the 
pleadings  were  unsupported  by  the  testimony,  and  strenu- 
ously urged  his  objections  to  the  instructions  to  the  court 
below,  and  the  refusal  to  give  those  requested  by  him,  on 
the  motion  for  a  new  trial,  and  many  of  the  errors  com- 
plained of  grow  out  of  the  alleged  discrepancy  between  proof 
and  pleading.  A  variance  is  not  material,  unless  it  have 
actually  misled  the  adverse  party  to  his  prejudice,  and 
when  prejudice  is  alleged  it  must  be  proven  to  the  satisfac- 
tion of  the  court  before  it  becomes  necessary  for  the  court 
to  even  order  an  amendment :  Code  of  Proc.  sees.  142,  143. 

It  will  be  seen  that  no  effort  was  made  to  offer  that  proof 
to  the  court,  and  as  a  consequence  the  plaintiff  in  error  had 
no  standing  on  a  motion  for  a  new  trial,  so  far  as  any  objec- 
tion growing  out  of  that  matter  was  concerned.  But  even 
if  be  had  then  offered  to  prove  that  he  was  misled  to  his 
prejudice,  it  came  too  late,  for  having  failed  to  take  advantage 
of  it  on  the  trial  where  amendment  could  be  made,  and  the 
case  proceed,  he  cannot  afterwards  do  so :  Nash  Plead,  and 
Prac.  120;  3  Hill.  237  ;  5  Wend.  301;  15  Johnson,  210;  17 
Wend.  71.  But  the  variance  being  an  immaterial  one  or 
not  proven  to  be  otherwise,  may  be  disregarded  and  the 
fact  found  according  to  the  proof:  Seney's  Code,  174-5; 
Voorhies'  Code,  339,  340,  341  and  342  ;  and  disregarding  the 
variance  is  equivalent  to  amendment,  or  the  amendment 
may  be  made  on  an  appeal :  Coleman  v.  Playstead,  36  Barb. 
29.  In  the  case  of  Fort  v.  Grooding,  9  Barb.  371,  which  is 
a  case  in  point  presenting  the  same  phase  as  the  one  at  bar, 


July,  1873.]  BRENNAN  v.  HEENAN.  129 

Opinion  of  the  Court — Carey,  J. 

it  was  held  that  evidence  of  a  special  agreement  is  admissi- 
ble in  an  action  by  a  daughter  against  her  father  for  wages, 
although  plaintiff  claimed  to  recover  upon  an  implied  agree- 
ment only,  defendant  not  having  been  misled ;  and  ample 
reason  to  justify  the  holding  in  the  above  case  is  found  in 
the  law  as  expounded  in  Chitty  on  Cont.  17. 

IV.  The  plaintiff  in  error  in  his  answer  below  claimed 
damages  for  failure  of  defendant  in  error  to  complete  the 
building  in  the  time  specified  in  the  original  contract. 
Whereas  defendant  in  error  claimed  in  his  testimony  that, 
by  reason  of  the  change  of  plan  and  the  extra  work  required 
by  the  plaintiff  in  error  himself,  it  was  impossible  to  com- 
plete the  building  in  that  time,  and  also  that  the  modifica- 
tion of  the  original  contract  necessarily  worked  an  enlarge- 
ment of  the  time.  It  has  been  held  that  a  parol  modifica- 
tion of  a  written  contract  makes  it  all  parol :  2  Watts,  451- 
456,  457.  And  where  the  subsequent  parol  modification 
is  based  upon  a  consideration,  suit  should  be  brought  on  the 
contract  as  modified.  As  the  written  contract  is  in  that  case 
considered  incorporated  with  it  (the  parol)  :  Chitty  on  Cont. 
115,  note  a. 

At  any  rate  it  is  unquestionably  the  right  of  parties  to  a 
contract  to  make  a  subsequent  contract  (and  this  without  re- 
gard to  kind,  whether  either  are  under  seal  or  parol,  or  both : 
Chitty  on  Contracts,  116,  note)  that  will  either  in  express 
terms,  or  by  necessary  implication,  enlarge  a  contract,  mod- 
ify or  altogether  vacate  it :  Chitty  on  Con.  115 ;  2  Par.  on 
Con.  47,  48,  49,  554.  And  in  all  cases  whatever,  a  prom- 
isor will  be  discharged  from  all  liability  when  the  non-per- 
formance of  his  obligation  is  caused  by  the  consent,  act  or 
fault  of  the  other  contracting  party :  2  Par.  on  Con.  676, 
note  9 ;  Cutter  v.  Powell,  2  Smith  Lead.  Cases,  47,  48,  49, 
subdivision  4;  3  Hill,  129  ;  9  N.  Y.  93;  4  Cowen,  564. 

By  the  Court,  CAREY,  J.  This  cause  was  tried  at  March 
term,  1873,  on  an  amended  petition,  answer  and  reply.  The 
amended  petition  alleges  that  James  Brennan,  defendant  (ap- 
pellant in  this  court),  is  indebted  to  William  Ileenan, 
9 


130  BEENNAN  v.  HEENAI*.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

plaintiff  (appellee  in  this  court),  in  the  sum  of  three  thou- 
sand two  hundred  and  fifty  dollars,  on  a  certain  contract  for 
the  erection  of  a  building  in  the  city  of  Cheyenne.  And 
also  in  the  sum  of  five  hundred  and  eighty-five  dollars  and 
fifty  cents  for  extra  work  in  and  about  said  building,  per- 
formed and  done  at  the  instance  and  request  of  appellant. 

The  answer  of  defendant  admits  the  execution  of  the 
contract,  and  admits  the  claim  for  a  portion  of  the  extra 
work,  but  pleads  an  offset  upon  an  account  for  two  hundred 
and  eighty-five  dollars  and  twenty-five  cents,  and  a  counter- 
claim for  alleged  breaches  of  the  contract,  and  also  alleges 
payment  of  all  moneys  due  plaintiff.  The  reply  is  a  general 
denial. 

The  jury  that  tried  the  case  found  for  the  plaintiff  (appel- 
lee in  this  court)  and  assessed  his  damage  at  four  hundred 
dollars.  A  motion  was  made  to  set  aside  the  verdict  and 
for  a  new  trial,  alleging  the  following  reasons  why  the  ver- 
dict should  be  set  aside  and  a  new  trial  granted,  viz :  That 
the  assessment  of  damages  by  the  jury  was  excessive ;  that 
the  verdict  was  not  sustained  by  sufficient  evidence ;  that 
the  verdict  was  contrary  to  law ;  that  the  court  erred  in  its 
instructions  to  the  jury ;  and  that  the  court  erred  in  refus- 
ing to  instruct  the  jury  as  requested. 

The  court,  after  argument,  overruled  the  motion. 

We  are  satisfied,  from  the  examination  of  the  entire  rec- 
ord in  this  case,  that  no  injustice  was  done  the  appellant 
by  the  verdict  given  by  the  jury  in  the  court  below. 

Judgment  affirmed. 


July,  1873.]  HAMILTON  v.  TERRITORY  OF  WYOMING.      131 

Argument  for  Plaintiff  m  Error. 

HAMILTON  v.  THE  TERRITORY  OF  WYOMING. 

VERDICT. — Under  the  statutes  of  Wyoming  territory,  for  the  year  1869, 
and  in  force  in  1872  and  1873,  it  was  the  duty  of  the  jury  in  criminal 
cases  where  a  verdict  of  guilty  was  found,  and  not  of  the  court,  to 
fix  the  term  of  imprisonment  or  to  assess  the  amount  of  fine. 

IDEM. — This  rule  applied  to  misdemeanors  as  well  as  to  felonies. 

CHANOE  OF  VENUE.— It  is  the  duty  of  the  district  court,  upon  the  trial 
of  a  criminal  cause,  where  the  proper  affidavit  as  to  the  bias  orpreju- 
dice  of  the  judge  is  filed  in  time,  to  call  in  another  judge  to  preside  at 
such  trial.  The  statute  in  ref  ereuoe  thereto  is  mandatory  and  imper- 
ative, and  upon  an  application  properly  made,  it  is  error  for  the  court 
to  refuse,  and  such  error  is  sufficient  to  obtain  a  reversal  of  the  judg- 
ment. 

ERROR  to  the  First  Judicial  District  Court  for  Laramie 
County. 

A  sufficient  statement  of  the  case  is  contained  in  the 
opinion  which  follows. 

W.  E.  Steele,  for  plaintiff  in  error. 

This  petition  in  error  is  prosecuted  by  Ida  Hamilton,  the 
defendant  below,  to  reverse  the  judgment  of  the  district 
court  of  the  first  judicial  district,  within  and  for  the  county 
of  Laramie,  at  the  March  term,  A.  D.  1873,  in  a  cause 
wherein  the  said  Ida  Hamilton  was  indicted  for  keeping 
and  maintaining  a  lewd  house,  for  the  practice  of  fornica- 
tion, under  which  she  was  tried,  found  guilty  and  sentenced 
to  an  imprisonment  of  four  months,  in  the  jail  of  Laramie 
county. 

The  first  error  assigned  upon  the  record  is,  that  the 
court  erred  in  refusing  to  sustain  and  allow  the  motion  of 
the  defendant  below  for  a  change  of  judge.  The  right  to 
change  the  judge  is  an  absolute  right  of  a  defendant  in  a 
criminal  case,  guaranteed  by  law :  Sec.  115,  Code  of  Grim. 
Proc. ;  Laws  of  Wyoming,  A.  D.  1869, 486.  There  is  no  discre- 
tion allowed  in  such  a  case,  but  the  change  "  shall  be  allowed." 
And  there  is  reason  and  justice  in  not  allowing  the  judge 
discretion  in  such  case.  The  statute  of  Indiana,  in  refer- 
ence to  criminal  practice,  contains  a  somewhat  similar  pro- 


132          HAMILTON  v.  TEKRITOKY  OF  WYOMING.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

vision — providing  that  a  change  may  be  allowed  on  account 
of  the  prejudice  of  the  judge  :  Sees.  76,  77,  Criminal  Plead- 
ings and  Practice ;  2  Stat.  of  Ind.  466 ;  Bick.  Crim.  Prac. 
231.  Under  this  statutory  provision,  the  supreme  court  of 
Indiana  has  held  that,  upon  such  affidavit  of  prejudice 
being  filed,  a  change  must  be  allowed:  Bick.  Crim.  Prac. 
231-2  ;  Seyner  v.  State,  8  Ind.  496 ;  Witter  v.  Taylor,  1  Id. 
110 ;  Gohby  v.  State,  18  Id.  147. 

On  this  first  assignment  of  error  we  confidently  ask 
that  the  judgment  of  the  court  below  should  be  reversed,  as 
being  a  fatal  error  invalidating  every  after  step  in  the  cause. 
The  jurisdiction  of  the  several  courts  herein  provided  for, 
both  appellate  and  original,  *  *  *  shall  be  as  limited 
by  law,  *  *  *  and  shall  possess  chancery,  as  well  as 
common  law  jurisdiction  for  redress  of  all  wrongs,  etc. : 
Organic  Act,  sec.  9. 

The  seventh  error  assigned  is,  that  the  court  below  erred 
in  refusing  to  allow  the  jury  to  fix  the  defendant's  punish- 
ment in  case  they  should  find  a  verdict  of  guilty.  This  is 
made  the  province  of  the  jury  by  the  laws  of  this  territory : 
Laws  of  Wyoming,  1871,  p.  77,  sec.  1 ;  Id.  1869,  p.  145, 
sec.  150  ;  Organic  Act,  sec.  9  ;  Const,  of  Ind.  sec.  1,  art.  7  ; 
1  Stats,  of  Ind.  46  ;  Laws  of  Crim.  Prac.  sec.  116 ;  2  Stats. 
of  Ind.  419.  The  constitutionality  of  this  act  has  never  been 
questioned  in  Indiana,  but  has  been  incidentally  affirmed  in 
Rice  v.  State,  9  Ind.  532. 

The  constitution  of  Missouri  and  its  laws  of  criminal  pro- 
cedure are  the  same,  and  the  constitutionality  of  the  law 
has  never  been  questioned  in  that  state.  The  law  is  the 
same  in  Iowa :  Cook  v.  United  States,  1  G.  Greene,  Iowa,  56. 
It  was  held  that  when  the  statute  authorized  the  jury  to  as- 
sess the  fine,  and  it  failed  to  do  so,  that  the  court  had  no 
authority  to  assess  the  fine  ;  yet  the  constitution  of  Iowa 
vests  in  certain  specified  courts  the  judicial  power,  and 
when  Iowa  was  a  territory,  an  act  was  passed  allowing  juries 
to  assess  the  amount  of  punishment  for  crime,  the  legality 
or  constitutionality  of  which  was  never  questioned,  but  tac- 


July,  1873.]  HAMILTON  v.  TERRITORY  OF  WYOMING.      133 

Opinion  of  the  Court — Carey,  J. 

itly  affirmed  in  Cropper  v.  United  States,  Morris'  Iowa  R. 
342.  As  to  authority  of  territorial  legislature,  see  Clinton 
v.  Englebrecht,  13  Wall.  434. 

W.  W.  Corlett,  for  the  defendant  in  error,  cited  Laws  of 
Wyoming,  1869,  *p~.  486,  sec.  115  ;  Voorhies'  N.  Y.  Code, 
121-123  ;  1  Greenl.  on  Ev.  sec.  461 ;  3  Gra.  &  Wat.  on  New 
Trials,  c.  10 ;  4  Wend.  483 ;  8  Id.  109 ;  Organic  Act  Wyo- 
ming Ter.  sec.  9 ;  Laws  of  Wyoming,  1869, 484 ;  2  Bish  Grim. 
Pro.  sees.  276,  285,  359,  941 ;  Laws  of  Wyoming,  1869,  500  ; 
Hill,  on  New  Trials,  479,  480,  481,  596 ;  22  111.  91 ;  6  Wise. 
350 ;  Dunphy  v.  Kliensmith,  11  Wall. 

By  the  Court,  CAREY,  J.  The  plaintiff  in  error,  at  the 
March  term,  1873,  of  the  district  court,  in  and  for  the  county 
of  Laramie,  first  judicial  district,  was  indicted,  tried  and 
convicted  of  "keeping  a  lewd  house  for  the  practice  of 
fornication."  After  motion  for  new  trial  was  made,  argued 
and  overruled,  the  plaintiff  in  error  was  sentenced  by  the 
court  to  an  imprisonment  in  the  county  jail  for  the  period 
of  four  months.  The  plaintiff  in  error  sued  out  a  writ  of 
error  to  reverse  judgment  of  the  district  court,  which  said 
writ  of  error  on  account  of  irregularity,  was,  on  motion  dis- 
missed. Thereafter  at  this  term,  the  plaintiff  in  error  filed 
a  motion  for  leave  to  file  a  petition  in  error,  which  said  mo- 
tion was  allowed  ;  Associate  Justice  Carey  dissenting. 
Thereafter  the  defendant  in  error  filed  a  motion  to  dismiss 
the  petition  in  error,  which  motion  was  overruled ;  As- 
sociate Justice  Carey  dissenting. 

One  of  the  errors  assigned  in  the  petition  in  error  is,  that 
the  district  court  erred  in  refusing  to  grant  the  motion  of 
defendant  (plaintiff  in  error)  for  a  change  of  judge  on  trial 
of  said  cause,  after  an  affidavit  had  been  filed  alleging  the 
prejudice  of  the  judge  of  said  court  in  said  cause. 

Section  nine  of  the  organic  act  provides  that  the  territory 
of  Wyoming  shall  be  divided  into  three  judicial  districts, 
and  that  a  district  court  shall  be  held  in  each  of  said  dis- 
tricts by  one  of  the  justices  of  the  supreme  court,  at  such 


134         HAMILTON  v.  TERRITORY  OF  WYOMING.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

time  and  place  as  may  be  prescribed  by  law  ;  and  said  judges 
after  their  appointments,  shall  reside  in  the  districts  which 
shall  be  assigned  them.  Section  fifteen  of  the  same  act 
provides,  that  temporarily,  and  until  otherwise  provided  by 
law,  the  governor  of  said  territory  may  assign  the  judges, 
etc.,  but  the  legislative  assembly  at  their  first,  or  any  subse- 
quent session,  may  assign  the  judges,  etc.  It  is  clear  from 
the  foregoing  provisions  of  the  organic  act,  that  either  of  the 
justices  of  the  supreme  court  is  authorized  to  hold  a  district 
court  in  either  of  the  defined  judicial  districts,  and  that 
temporarily,  and  until  otherwise  provided  by  law,  or  until 
the  legislative  assembly  should  assign  the  judges,  the  gover- 
nor of  the  territory  should  make  such  assignments,  and  that 
it  would  be  competent  for  the  legislative  assembly  either 
by  law  to  provide  for  the  assignment  of  judges,  or  by  law  to 
directly  assign  the  judges  to  the  several  districts. 

Section  115  of  the  code  of  criminal  procedure  of  the 
territory,  provides  that  all  criminal  cases  shall  be  tried  in 
the  county  where  the  offense  was  committed,  unless  it  shall 
appear  to  the  court,  by  affidavits,  that  a  fair  and  impartial 
trial  cannot  be  had  therein  for  any  cause,  in  which  case  the 
court  may  direct  the  person  accused  to  be  tried  in  some 
adjoining  district,  where  the  cause  alleged  for  removal  does 
not  exist.  If  the  affidavit  shall  allege  the  prejudice  of  the 
judge  as  a  ground  of  removal,  the  change  of  venue  shall  be 
allowed,  and  the  case  go  to  another  district ;  provided  that 
if  the  objection  be  made  to  the  judge  only,  the  court  may, 
for  the  convenience  of  parties,  request  the  judge  of  another 
district  to  try  said  cause  in  the  county  in  which  such  action 
may  be  pending. 

The  foregoing  provision  of  law  means  simply  this,  that  if 
it  appears  to  the  court,  by  affidavit,  that  a  fair  and  impartial 
trial  cannot  be  had  in  the  county  where  it  is  alleged  the 
crime  was  committed,  the  court  may  direct  a  change  of  venue, 
but  if  an  affidavit  shall  be  made,  alleging  the  prejudice  of 
the  judge,  a  change  of  district  shall,  not  may,  be  allowed  ; 
provided  that  if  the  objection  be  to  the  judge  only,  the  court 


July,  1873.]  HAMILTON  u.  TERRITORY  OF  WYOMING.     135 

Opinion  of  the  Court — Carey,  J. 

may,  for  the  convenience  of  parties,  request  the  judge  of 
another  district  to  try  the  cause  in  the  county  where  pend- 
ing. While  we  may  deprecate  the  existence  of  a  law  which 
permits  a  person  accused  of  crime  to  impeach  the  impar- 
tiality or  integrity  of  a  county  or  judge,  yet  we  can  see 
nothing  in  the  law  in  conflict  with  the  law  organizing  the 
territory. 

Juries  and  judges  should  be  impartial,  but  to  determine 
their  partiality  we  think  the  law  should  require  something 
more  than  the  affidavit  of  an  accused  party.  The  courts  are 
not  arbitrators,  nor  are  they  responsible  for  the  defects  of 
the  law,  they  are  only  bound  to  interpret  and  declare  what 
the  law  is. 

The  legislative  assembly  in  providing  for  a  change  of  a 
judge,  has  a  precedent  in  the  law  of  congress  of  third  of 
March,  1863,  which  provides  that  whenever  the  judge  of  the 
supreme  court  for  any  circuit,  from  his  having  been  of  coun- 
sel or  being  interested  in  any  cause  pending  in  such  circuit 
court,  or  from  any  other  cause,  shall  deem  it  advisable  that 
the  circuit  court  shall  be  holden  by  the  judge  of  any  other 
circuit,  he  may  request  in  writing  the  judge  of  any  other 
circuit  to  hold  the  court  in  such  circuit.  The  law  of  con- 
gress leaves  it  with  the  judge  to  say  whether  there  shall  be 
a  change  of  judge ;  the  law  of  the  territory  says  that  it 
shall  be  determined  on  an  affidavit.  As  the  law  now  stands 
upon  the  statute  book  of  this  territory,  whenever  in  any 
criminal  case  an  affidavit  is  filed  alleging  the  prejudice  of 
the  judge,  it  is  the  duty  of  the  court  to  allow  a  change  of 
district,  or  to  request  a  judge  of  another  district  to  try  the 
case  in  the  county  where  pending,  the  judge  so  requested 
becomes  the  assigned  judge  to  try  the  cause.  The  only  other 
error  alleged  in  petition  in  error,  which  we  deem  it  neces- 
sary to  consider,  is  us  follows : 

"That  the  district  court  erred  in  refusing  to  allow  the 
jury  to  affix  the  penalty  to  be  assessed  against  and  inflicted 
upon  the  said  Ida  Hamilton,  in  case  the  said  jury  should 
find  the  said  Ida  Hamilton  guilty  of  the  offenses  charged  in 


136          HAMILTON  v.  TERRITORY  OF  WYOMING.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

said  indictment."  *  *  *  The  statute,  section  114,  act 
defining  crimes,  laws  of  1869,  under  which  plaintiff  in  error 
was  indicted,  tried  and  convicted,  fixes  the  punishment  at 
not  exceeding  one  hundred  dollars,  or  imprisonment  in  the 
county  jail  not  exceeding  six  months.  Section  169  of  same 
act  provides  that  when  the  punishment  for  any  crime  is  dis- 
cretionary as  to  the  amount  or  extent,  the  court  may  deter- 
mine the  same.  The  statute  of  sixteenth  of  December,  1871, 
amended  the  last  named  section  by  inserting  the  word  "jury  " 
for  that  of  "  court." 

In  the  trial  of  this  case  in  the  district  court,  the  judge 
expressly  refused  to  instruct  the  jury  that  they  should,  if 
they  found  the  defendant  (plaintiff  in  error)  guilty,  deter- 
mine the  amount  and  extent  of  punishment  under  the  stat- 
ute, the  court  holding  that  the  fixing  or  determining  the 
amount  of  punishment  is  a  judicial  power,  and  could  not 
be  exercised  by  a  jury.  The  organic  act  of  the  territory 
provides  that  the  judicial  power  of  the  territory  shall  be 
vested  in  a  supreme  court,  district  courts,  probate  courts, 
and  justices  of  the  peace.  The  act  also  provides  how  the 
supreme  and  district  courts  shall  be  constituted.  No  one 
will  contend  for  a  moment  that  it  was  not  the  intention  of 
congress  that  there  should  be  jury  trials  in  the  district 
courts.  This  question  is  settled  by  the  language  of  the  or- 
ganic act,  as  also  by  several  decisions  of  the  supreme  court 
of  the  United  States.  The  jury  are  the  judges  of  the  facts, 
and  in  the  trial  of  cases  by  jury  become  as  important  a  part 
of  the  district  court  as  the  judge  himself.  The  judicial 
power  of  the  territory  is  not  vested  in  the  justice  of  the 
supreme  court,  but  in  the  supreme  and  district  courts  and 
certain  inferior  courts,  and  a  jury  in  the  trial  of  a  cause  in 
the  district  court  must  necessarily  exercise  a  part  of  the 
judicial  power ;  they  are  judges  of  the  facts,  and  must  de- 
termine them  from  the  evidence.  The  word  judge  means  a 
public  officer,  lawfully  appointed  to  decide  litigated  ques- 
tions according  to  law.  "  This,  in  its  more  extensive  sense, 
includes  all  officers  who  are  appointed  to  decide  such  ques- 


July,  1873.]    COUNTY  COM.  v.  COUNTY  COM.  137 


Points  decided. 


tions  ;  and  not  only  judges,  properly  so  called,  but  also  jus- 
tices of  the  peace  and  juries,  who  are  the  judges  of  the 
facts  in  issue  :"  4  Dall.  229,  and  3  Yates  It.  300.  The  ob- 
ject of  discretionary  punishments  is,  that  the  punishment 
may  in  each  case  be  proportioned  so  as  to  do  justice.  Two 
persons  may  each  commit  the  same  offense,  yet  one  be  de- 
serving of  more  punishment  than  the  other,  and  it  has  been 
found  wise  for  the  law-makers  to  make  discretionary  pun- 
ishments. The  rule  has  generally  been  to  leave  the  punish- 
ment in  such  cases  to  the  discretion  of  the  judges,  yet  we 
can  see  no  reason  why  this  discretion  should  not  be  left  to 
the  jury ;  a  discretion  which  should  in  every  instance  be 
founded  on  the  evidence  and  the  peculiar  circumstances  of 
the  case.  In  several  of  the  states  this  discretion  has  been 
left  with  the  juries,  and  nowhere  does  the  constitutionality 
of  the  provision  appear  to  have  been  questioned ;  and  by 
comparison  of  the  constitutions  of  these  states  with  the  or- 
ganic act,  we  can  find  no  material  difference  as  to  where 
shall  be  vested  the  judicial  power. 

Judgment  reversed ;  case  renranded  for  a  new  trial. 


COUNTY  COMMISSIONERS  OF  THE  COUNTY  OF  LARA- 
MIE  v.  COUNTY  COMMISSIONERS  OF  THE  COUNTY 
OF  ALBANY  AND  COUNTY  COMMISSIONERS  OF  THE 
COUNTY  OF  CARBON. 

*  CONTRIBUTION — COUNTY  LIABILITIES. — The  rule  is  well  established, 
that  where  a  county  has  been  divided  by  an  act  of  the  legislature, 
.  one  portion  thereof  retaining  the  former  name,  county  seat,  build- 
ings and  organization,  and  all  county  property,  that  such  county  is 
responsible  for  the  entire  indebtedness  of  the  former  county  at  the 
time  of  such  division,  and  that  an  action  will  not  lie  against  the 
new  counties  for  contributions,  unless  special  provision  is  made 
therefor  by  the  legislature  in  the  act  itself. 

IDEM. — Where  the  legislature  of  Wyoming  territory  organized  two  new 
counties,  and  included  within  their  limits  a  part  of  the  territory  of 

*Afflnned  by  the  Supreme  Court  of  the  United  States  :  See  2  Otto  K,  307. 


138  COUNTY  COM.  v.  COUNTY  COM.         [Sup.  Ct. 


Statement  of  Facts. 


an  existing  county,  but  made  no  provision  for  apportioning  debts 
or  liabilities:  Held,  that  the  old  county,  being  solely  responsible 
for  the  debts  and  liabilities  it  had  previously  incurred,  had,  on  dis- 
charging them,  no  claim  upon  the  new  counties  for  contribution. 

APPEAL  from  the  judgment  and  decree  of  the  First  Judi- 
cial District  for  Laramie  County. 

An  act  was  passed  by  the  legislative  assembly  of  the  terri- 
tory of  Dakotah,  and  approved  January  9,  1867,  by  the 
governor  of  said  territory,  to  create  and  organize  the  coun- 
ty of  Laramie,  and  subsequently  said  legislative  assembly 
passed  an  act  to  reorganize  said  county  of  Laramie,  which 
act  was  approved  by  the  governor  of  Dakotah  on  the  third 
day  of  January,  1868.  Said  county,  as  reorganized,  com- 
prised that  portion  of  said  territory  which  now  forms  the 
counties  of  Laramie,  Albany  and  Carbon,  in  the  territory 
of  Wyoming.  By  the  last-named  act  the  city  of  Cheyenne, 
in  the  present  county  of  Laramie,  was  designated  as  the 
county  seat.  At  the  time  of  such  reorganization,  for  sev- 
eral months  after,  and  until  December  16,  1868,  the  Union 
Pacific  R.  R.  Co.  was  constructing  its  road  and  telegraph 
line  through  the  southern  part  of  said  county  of  Laramie, 
for  a  distance  of  about  two  hundred  and  sixty  miles,  from 
the  eastern  to  the  western  limits  thereof.  And  said  com- 
pany erected  along  the  line  of  said  railroad  a  large  number 
of  valuable  buildings,  including  depots,  warehouses,  tele- 
graph stations,  station-houses,  hotels,  round-houses,  engine- 
houses  and  work  shops,  estimated,  in  said  complaint,  at  the 
value  of  five  hundred  thousand  dollars,  the  like  estimate  of  the 
value  of  such  railroad  in  Laramie  county  being  one  million 
six  hundred  thousand  dollars.  The  complainant  further 
alleges  that,  during  the  spring  and  summer  of  1868,  a  num- 
ber of  towns  and  villages  were  built  along  the  line  of  said 
railroad,  and  that  the  value  of  permanent  improvements, 
during  the  time  last-mentioned,  was  at  least  two  hundred 
and  fifty  thousand  dollars ;  and  that,  at  the  time  of  the  re- 
organization of  said  county,  as  aforesaid,  the  aggregate 
value  of  permanent  improvements  in  the  towns  of  Cheyenne, 


July,  1873.]    COUNTY jCoM.  v.  COUNTY  COM.  139 


Statement  of  Facts. 


Sherman  and  Dale  Creek,  in  said  county  of  Laramie,  was 
not  less  than  five  hundred  thousand  dollars.  It  is  further 
alleged  that,  in  the  summer  of  1868,  large  herds  of  cattle, 
of  the  estimated  value  of  seventy-five  thousand  dollars, 
were  brought  upon  Laramie  plains,  now  in  Albany  county, 
and  that  the  same  have  since  been  increasing  in  numbers 
and  value  ;  and  that,  at  about  the  same  time,  coal  mines  of 
considerable  value  were  discovered  and  worked  in  what  is 
now  Carbon  county  3  and  that,  on  the  sixteenth  day  of 
December,  1868,  the  value  of  the  property  of  a  permanent 
nature,  in  the  entire  county  of  Laramie,  was  of  the  value  of 
three  million  dollars,  subject  to  assessment.  It  is  further 
shown  that  the  persons  named  as  officers  in  the  act  organiz- 
ing Laramie  county,  failed  to  qualify,  and  by  reason  thereof 
the  interests  and  affairs  of  said  county  were  neglected  until 
January,  1868,  when  the  officers  named  in  the  act  reorganiz- 
ing said  county,  qualified  and  entered  upon  the  discharge 
of  the  duties  of  their  respective  offices,  until  their  suc- 
cessors were  duly  elected  and  qualified. 

The  complainant  also  states  that  at  the  time  of  the  con- 
struction of  the  Union  Pacific  Railroad,  in  addition  to  the 
workmen  and  other  employees  of  said  company,  who  came 
within  the  limits  of  Laramie  county  for  the  purpose  of  con- 
structing said  railroad  and  the  buildings  and  telegraph  lines 
of  said  company,  a  great  many  felons  and  other  criminals 
infested  the  entire  country  through  which  the  railroad  was 
then  being  built,  committing  a  large  number  of  crimes  and 
depredations,  thereby  rendering  the  employment  of  numer- 
ous peace  officers  necessary,  which,  in  addition  to  court, 
hospital  and  other  expenses  arising  therefrom,  made  a  heavy 
expenditure  necessary  by  said  county.  Which  expense, 
with  the  salaries,  fees  and  disbursements  of  the  county  of- 
ficers for  the  year  1868  were,  it  is  claimed,  subsequently 
paid  by  that  portion  of  the  county  only  which  now  forms 
Laramie  county,  except  the  sum  of  twelve  thousand  dollars 
assessed  upon  and  paid  iu  1868  by  the  entire  county  as 
originally  organized.  It  is  further  claimed  by  the  plaintiff 


140  COUNTY  COM.  v.  COUNTY  COM.         [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

that  the  full  amount  of  such  expenditure  was  about  forty 
thousand  dollars,  leaving  a  balance  of  twenty-eight  thousand 
dollars  for  a  contribution,  towards  the  payment  of  which 
last  named  sum  by  the  counties  of  Albany  and  Carbon,  this 
action  is  brought.  It  is  further  shown  by  the  acts  of  the 
Dacotah  legislature,  above  referred  to,  that  no  provisions 
were  made  by  the  same  for  the  payment  of  such  indebted- 
ness. 

To  the  bill  of  complaint  both  of  the  defendants  severally 
demurred,  for  the  reason :  "  That  the  said  complainant  did 
not,  in  and  by  its  said  bill,  make  or  state  such  a  case  as  did  or 
ought  to  entitle  it  to  any  such  discovery  or  relief  as  is  there- 
by sought  and  prayed  for  from  or  against  the  defendants," 
which  said  demurrers  were  sustained  by  the  district  court, 
and  an  appeal  is  brought  to  this  court  from  such  decision. 

McLaughlin  and  Steele,  for  the  plaintiffs,  cite:  Laws  of 
Wyoming,  1869, 146  ;  Laws  of  Dacotah,  1868  ;  Laws  of  Wy- 
oming 1869,  707;  2  Kent,  331,  332,  333;  Cooley's  Const. 

Lim.  488,  504;  Vattel's   Law  of  Nations, ;    21   Penn. 

St.  107  ;  Morford  &  Unger,  8  Iowa  (Clark),  82 ;  Angel  & 
Ames  on  Corp.  1  to  20  ;  Dillon  on  Mun.  Corp.  30,  42,  55 ; 
Dillon's  Cir  Ct.  Rep.  130;  5  Ohio  St.  496;  8  Iowa,  92  ;  3 
Iowa,  604  ;  1  Story's  Eq.  Juris,  sees.  64, 469  to  505 ;  10  Mass. 
384 ;  2  Searg.  &  Rawle,  117 ;  27  Penn.  107. 

Corlett  and  Bramel,  for  the  defendants,  cite  :  16  Mass.  76  ; 
52  Penn.  374 ;  4  Mass.  390  ;  31  N.  Y.  164;  2  Wend.  (N.  Y.) 
109  ;  11  Ohio,  96  ;  6  Gush.  575-578  ;  15  Mass.  197  ;  8  Iowa, 
82 ;  16  Mass.  16 ;  Cooley's  Const.  Lim.  189  et  seq. ;  Id.  488 ; 
16  Mass.  76;  12  La.  515;  Dillon  on  Mun.  Corp.  sees.  30  et 
s?q. ;  3  How.  534  ;  8  Ohio  St.  285  ;  10  How.  511-541 ;  4  Gray, 
250. 

By  the  Court,  THOMAS  J.  The  rule  appears  to  be  well 
established,  that  upon  the  state  of  facts  set  forth  in  the  com- 
plainant's bill,  where  a  county  has  been  divided  by  an  act 
of  a  legislature,  one  portion  thereof  retaining  the  former 
name,  county-seat,  county  organization,  county  buildings, 


July,  1873.]    COUNTY  COM.  v.  COUNTY  COM.  141 

Opinion  of  the  Court — Thomas,  J. 

and  all  other  county  property,  and  the  other  portion  being 
formed  into  new  counties,  that  the  county  retaining  such 
name  and  organization  is  responsible  and  liable  solely  for 
the  entire  indebtedness  of  the  county  at  the  time  of  such 
division,  and  cannot  bring  an  action  for  contribution 
against  the  counties  so  set  off,  unless  especially  authorized 
so  to  do  by  an  act  or  provision  of  the  legislature  making 
such  division.  That  such  legislature  is  empowered  to  make 
a  division  upon  such  terms  and  conditions  in  reference  to 
the  payment  of  any  indebtedness  then  accrued  as  it  may 
deem  proper,  and  that  even  a  court  of  equity  cannot  inter- 
fere in  the  matter,  except  in  the  case  of  a  special  provision 
as  above  mentioned. 

I  am  further  of  the  opinion  that  even  if  the  foregoing  rule 
did  not  hold  good,  the  defendant  herein  can  have  no  relief 
in  chancery.  From  the  very  nature  and  condition  of  affairs 
set  forth  in  the  complaint,  it  appears  that  it  would  be  im- 
possible to  obtain  equitable  relief,  or  that  a  court  or  master 
in  chancery  could  arrive  at  any  just  computation  of  the 
amount  that  would  be  due  from  the  defendants,  or  either  of 
them,  to  the  complainant.  It  appears  from  the  complaint 
that  quite  a  portion  of  the  original  indebtedness  has  been' 
paid  by  taxes  assessed  upon  the  western  portion  of  the  for- 
mer county  of  Laramie ;  but  it  does  not  appear,  from  the 
showing  of  the  complaint,  that  it  is  in  the  power  of  the  com- 
plainant, or  that  there  are  any  means  whatever  to  prove 
either  the  just  proportion  of  the  taxes  already  paid  by 
the  counties  of  Albany  and  Carbon,  or  the  amount  of  prop- 
erty existing  in  December,  1868,  in  that  portion  of  Laramie 
county  now  forming  Albany  and  Carbon.  On  the  contrary, 
it  rather  appears,  by  the  statements  of  the  complainant, 
that  from  the  vague  and  indefinite  condition  in  which  the 
affairs  of  Laramie  county  then  were,  and  the  property  con- 
tained therein  has  since  continued  to  be,  that  an  equitable 
adjudication  of  the  case  could  not  be  obtained.  It  appears 
that  the  western  portion  of  the  county  had,  up  to  Decem- 
ber, 1868,  paid  their  taxes  according  to  the  assessments 


142  COUNTY  COM.  ».  COUNTY  COM.        [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

then  made  by  the  officers  of  Laramie  county,  and  it  is  to 
be  presumed  that  such  assessments  were  correct — at  least 
far  more  so  than  any  which  could  be  arrived  at  at  this  late 
day. 

The  complaint  states  that  during  the  year  1868  the  offi- 
cers of  Laramie  county  had  qualified,  entered  upon  and 
were  discharging  the  duties  of  their  offices,  and  the  infer- 
ence certainly  is  that  they  performed  their  duties  in  a  just 
and  equitable  manner  ;  that  the  assessment  for  that  year  was 
as  correct'  as  could  under  the  circumstances  be  made,  and 
that  the  amount  of  taxes  then  paid  by  that  portion  of  said 
county,  now  forming  Albany  and  Carbon,  was  the  equitable 
proportion  of  those  counties.  If  equity  is  to  be  adminis- 
tered it  should  certainly  be  administered  strictly,  and  while 
it  cannot  be  denied  that  any  one  bringing  taxable  property 
into  or  settling  within  a  county,  becomes  to  an  extent  re- 
sponsible for  its  liabilities,  yet  in  the  inchoate  condition  of 
affairs  in  Laramie  county,  in  December,  1868,  and  from  the 
continual  change  which  has  since  then  taken  place  in  prop- 
erty and  the  ownership  thereof,  in  the  counties  of  Albany 
and  Carbon,  I  am  unable  to  perceive  that  it  would  be  any 
more  equitable  to  compel  the  present  inhabitants  of  these 
last  named  counties  to  contribute  to  the  former  indebted- 
ness of  Laramie  county,  and  from  which  indebtedness  the 
greater  portion  of  such  present  inhabitants  derived  no  ben- 
efit, whatever,  than  to  leave  said  indebtedness  as  it  now  is, 
already  paid  by  the  inhabitants  of  Laramie  county,  who 
certainly  derived  by  far  the  greatest  advantages  from  the 
above  mentioned  expenditure,  and  paid  some  time  since  by 
those  inhabitants  of  Laramie  county,  who  had  apparently  a 
more  direct  interest  in  the  affairs  of  Laramie  county  when 
such  indebtedness  accrued  than  either  the  present  inhabi- 
tants and  property  owners  of  Laramie  county,  or  of  Albany 
and  Carbon  counties.  While  it  is  true  that  the  three  sepa- 
rate quasi  corporations,  parties  to  this  suit,  have  since  con- 
tinned  the  same,  it  is  equally  certain  that  the  inhabitants, 
property,  and  property  owners  thereof,  have  greatly  changed, 


July,  1873.]  MARTIN  v.  UNION  PACIFIC  R.  R.  Co.          143 

Argument  for  Appellant. 

and  in  a  matter  of  right  or  equity  I  think  we  should  regard 
the  real  justice  in  the  case. 

The  decision  of  the  district  court  therefore,  sustaining 
the  demurrers  of  the  defendants,  is  approved,  and  such  de- 
cision is  affirmed. 


MARTIN  v.  THE  UNION  PACIFIC  RAILROAD  CO. 

EVIDENCE — CUSTOM — USAGE. — The  general  custom  or  rules  of  a  rail- 
road company,  or  of  various  companies,  cannot  affect  a  special  con- 
tract or  modify  the  same,  where  such  contract  contains  no  ambiguity 
of  terms. 

IDEM. — Neither  is  proof  of  such  general  custom  or  usage  permissible, 
unless  it  is  also  shown  that  such  has  been  so  in  the  dealings  of  such 
companies  with  outside  parties,  they  understanding  and  consent- 
ing thereto. 

IDEM. — It  must  be  a  general  usage  between  the  company  and  those  who 
contract  with  it. 

IDEM. — While  the  freight  books  of  a  company  may  be  used  to  refresh 
the  memory  of  a  witness  who  has  made  entries  in  them,  such  books 
in  themselves  are  no  evidence,  and  were  properly  excluded. 

APPEAL  from  the  District  Court  for  Laramie  County. 

A  sufficient  statement  of  this  case  is  contained  in  the 
opinion. 

W.  R.  Steele,  for  appellant. 

This  appeal  is  prosecuted  to  reverse  the  judgment  of  the 
court  below,  rendered  at  the  March  term,  A.  D.  1873. 

The  first  error  assigned  is  in  rejecting  the  evidence  offered 
by  defendant  to  show  by  the  witness,  E.  P.  Vining,  that 
there  was  a  general  rule  on  all  the  railroads  of  the  United 
States  as  to  the  time  special  rate  contracts  should  expire. 
This  was  an  offer  to  prove  the  usage  in  the  particular  busi- 
ness and  was  competent :  1  Greenl.  on  Ev.  292-4  ;  Red.  on 
Carriers,  173 ;  2  Red.  on  Railways,  135  ;  St.  John  et  al.  v. 
Van  Santvoord,  25  Wend.  660  ;  St.  John  v.  Fan  Santvoord, 
6  Hill,  157. 

Second  error:  refusal  to  allow  McKay  to  testify  from 
the  freight  books :  1  Greenl.  on  Ev.  sec.  117  et  seq.  Error 


144  MARTIN  v.  UNION  PACIFIC  R.  R.  Co.    [Sup.  Ct. 

Argument  for  Appellee. 

in  neglecting  to  charge  as  to  right  of  possession  :  Code  of 
Proc.  sec.  186,  p.  540  ;  Seney's  Code,  198.  Error  in  refusing 
to  charge  the  jury  as  requested  in  reference  to  the  custom 
as  to  the  expiration  of  special  freight  rates  :  1  Greenl.  on 
Ev.  sees.  292,  294 ;  Red.  on  Carriers,  173 ;  2  Red.  on  Rail- 
ways, 135  ;  St.  John  v.  Van  Santvoord,  6  Hill,  157. 

W.  M.  Corlett,  for  appellee. 

The  appellee,  in  answer  to  the  first  assignment  of  error, 
insists  that  the  ruling  of  the  court  was  correct,  for  two  rea- 
sons: 

I.  That  the  evidence  excluded  .was  irrelevant,  as  the  said 
Vining  testified  that  he  made  the  contract  in  question  with 
appellee,  and  that  by  its  express  terms  it  was  to  expire  on 
the  first  day  of  December  of  the  current  year. 

II.  Because  the  evidence  offered  would  have  tended  to 
overthrow  the  contracts  as  set  up  by  both  parties ;  and  it 
may  be  added  that  the  offer  was  not  to  prove  a  general  cus- 
tom or  usage,  but  a  general    rule  of   the  railroads  of  the 
United  States.     Custom  or  usage  means  the  practice  of  both 
parties  to  contracts,  not  simply  the  rule  of  one  of  the  par- 
ties :  2  Par.  on  Con.  535,  547  ;  1  Greenl.  on  Ev.  sees.  49  to 
56.     As  to  the  second  error  complained  of,  an  examination 
of  the  record  will  disclose  the  fact  that  no  proper  foundation 
was  laid  for  the  introduction  of  the  books,  and  the  witness 
McKay  was  simply  asked,  not  to  state  a  fact  within  his  own 
knowledge  or  as   to  the  character  of  the  books,  but  as  to 
what  the  books  contained  or  showed.      On  this  point  see 
Laws  of  Wyoming,  1869,  p.  574,  sec.  343 ;  1  Greenl.  on  Ev. 
sec.  115  to  121.     As  to  the  third  assignment  of  error  herein, 
it  is  to  be  remarked,  first,  that  the  assignment  does  not  cor- 
respond with  the  record.     The  exception  in  the  record  be- 
ing only  to  a  portion  of  the  instructions  of  the  court.     Hence 
the  alleged  error  complained  of  and  excepted  to  in  the  trial 
appears  to  be  abandoned  in  the  assignment  of  errors  in  this 
court,  and  a  new  error  assigned  here  which  was  not  saved 
by  exception  in  the  court  below.     Upon  the  error  assigned, 


July,  1873.]  MARTIN  v.  UNION  PACIFIC  R.  R.  Co.  145 

Opinion  of  the  Court — Fisher,  C.  J. 

to  wit,  the  charge  of  the  court,  however,  the  appellee  refers 
to  4  Wend.  483 ;  3  Wend.  109  ;  3  Gra.  &  Wat.  chap.  10.  As 
to  the  fourth  error  assigned,  the  exception  being  to  the  re- 
fusal of  the  judge  to  give  several  propositions  together,  and 
some  of  them  being  erroneous  and  inapplicable  to  the  case, 
the  refusal  was  right,  though  some  of  the  propositions  asked 
for  may  have  been  correct:  3  Graham  &  Waterman,  717, 
718. 

By  the  Court,  FISHER,  C.  J.  This  was  an  action  in  re- 
plevin, brought  by  John  H.  Martin  for  the  recovery  of 
damages  for  the  alleged  wrongful  detention  of  thirty  car- 
loads of  hay  from  McPherson  Station,  and  from  a  siding 
at  Gaunett,  in  the  state  of  Nebraska  to  Cheyenne,  and  Camp 
Carling,  in  the  territory  of  Wyoming,  to  fill  a  contract  for 
the  United  States  ;  under  an  alleged  special  contract  entered 
into  with  and  between  the  parties  to  this  action.  Under  the 
terms  of  the  special  contract,  the  defendant  undertook  to 
furnish  cars  to  the  plaintiff,  at  rates  much  less  than  the 
schedule  rates,  as  published  in  the  ordinary  course  of  their 
business.  The  evidence  on  the  part  of  the  plaintiff  below 
is,  that  on  the  tenth  of  September,  1871,  he  submitted  to 
the  freight  agent  of  the  defendant  below,  an  interrogatory 
written  with  a  lead  pencil  in  the  following  words  : 

"  E.  P.  Vining,  G.  F.  A. :  How  much  per  car-load  will 
you  charge  me  for  three  hundred  cars  of  hay  from  McPher- 
son and  Julesburg  to  Cheyenne  ?  Fifty  cars  of  grain  from 
Omaha,  Fremont  and  G.  Island  to  Cheyenne  ;  fifty  cars  of 
flour  from  Omaha  to  Cheyenne,  and  one  hundred  and  seventy- 
five  cars  of  wood  from  Sherman  to  Cheyenne.  J.  H.  Martin." 

"  After  I  submitted  this  proposition  to  Mr.  Vining  we  had 
some  talk,  and  he  made  me  this  answer :" 

"  Hay,  McPherson  to  Cheyenne,  large  cars,  $46  ;  small,  do., 

$32  ;  Julesburg  to  Cheyenne,  large  care,  $40  ;    small  cars, 

$30  ;    grain  and  flour,  Omaha,  Fremont  and   G.   Island  to 

Cheyenne,  $70,  cars,  car-loads  not  to  exceed  20,000  pounds  ; 

10 


146  MARTIN  v.  UNION  PACIFIC  R.  R.  Co.    [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

wood,  Sherman  to  Cheyenne,  $12.50,  car  not  exceeding  500 
cords,  all  above  500,  $16.50  per  car." 

"  This  answer  is  in  the  handwriting  of  Colonel  Brownson, 
except  the  modification  as  to  the  quantity  of  wood,  which 
Mr.  Vining  placed  upon  it  in  pencil  himself.  This  hay  re- 
plevied  was  shipped  on  this  contract.  McKay,  agent,  refused 
to  deliver  the  hay  because  the  freight  was  not  paid." 

The  evidence  further  shows,  being  admitted  by  defendant 
below,  that  a  tender  was  made  of  the  amount  of  the  freight 
according  to  the  terms  of  the  above  contract.  It  was 
claimed  by  the  defendant  below;  that  admitting  the  special 
contract  to  have  been  made,  that  it  expired  with  the  year 
1871,  under  the  rules  of  the  company  ;  one  of  which  was, 
that  all  special  contracts  ended  on  the  thirty-first  of  Decem- 
ber ;  that  the  plaintiff  was  furnished  with  a  circular  issued 
by  the  company,  giving  notice  that  all  special  rates  would 
cease  on  and  after  that  day ;  and  that  any  freight  to  be 
shipped  would  be  subjected  to  the  regular  tariff  of  rates  of 
the  company  ;  which  at  that  time  would  amount  to  seventy- 
one  dollars  and  five  cents  per  car. 

The  court  below  submitted  the  question  of  fact  to  the 
jury,  with  the  instruction,  that  if  they  believed  from  the 
evidence  that  such  a  contract  was  entered  into  between  the 
parties  without  reference  to  time,  that  the  law  would  imply 
that  the  freighting  should  be  done  in  a  reasonable  time,  and 
that  the  defendant  would  be  bound  by  its  contract,  unless 
it  could  show  that  there  was  unnecessary  delay  on  the  part 
of  the  plaintiff ;  that  no  matter  what  were  the  rules  of  the 
railroad  company,  if  it  agreed  to  carry  the  freight  in  ques- 
tion at  stipulated  rates,  and  the  plaintiff  proceeded  to  do 
the  shipping  without  any  unreasonable  delay,  the  company 
would  be  bound  by  its  special  contract,  if  entered  into  by 
an  agent  having  authority  to  make  such  a  contract.  The 
jury  were  further  instructed  that  if  they  found  that  such  a 
contract  had  been  made,  and  that  the  plaintiff  had  per- 
formed his  part  of  said  contract  without  delay  ;  that  a  tender 


July,  1873.]  MARTIN  v.  UNION  PACIFIC  R.  R.  Co.          147 

Opinion  of  the  Court — Fisher,  C.  J. 

of  the  full  amount  of  freight  had  been  made,  in  accordance 
with  the  contract ;  that  the  plaintiff  was  entitled  to  the  im- 
mediate possession  of  the  property,  at  the  time  the  tender 
was  made,  and  that  the  plaintiff  had  sustained  damages  by 
reason  of  the  detention ;  that  then  their  verdict  should  be 
for  plaintiff  ;  that  he  receive  the  property  with  such  damages 
as,  in  their  judgment,  he  had  sustained ;  while  on  the  other 
hand  if  they  should  find  that  there  was  not  such  a  special 
contract,  or  that  if  there  was  a  contract,  and  that  the  plain- 
tiff had  failed  to  comply  with  his  part  of  its  terms,  by  not 
shipping  the  hay  as  rapidly  as  possible ;  that  the  neglect  or 
refusal  on  his  part  would  set  aside  the  special  contract,  and 
subject  him  to  the  ordinary  schedule  of  freights  of  the  com- 
pany, and  that  then  they  should  find  for  the  defendant  and 
in  either  case,  should  assess  the  damages  in  such  sum  as  the 
evidence  warranted. 

The  errors  complained  of  by  the  appellant  are:  1.  That 
the  court  erred  iu  refusing  to  permit  a  custom  of  other  rail- 
roads, as  to  the  expiration  of  all  special  rates  at  the  end  of 
each  year ;  2.  That  the  court  below  refused  to  permit  the 
agent  of  the  appellant  to  testify  as  to  the  books  of  the  ap- 
pellant ;  and,  3.  That  the  court  erred  in  its  instructions  to 
the  jury. 

With  regard  to  the  first  complaint,  we  fail  to  see  any 
error.  The  record  shows  that  the  custom  of  the  defendant 
below  was  permitted  to  go  to  the  jury  without  objection, 
and  that  having  been  permitted  was  certainly  as  much  as 
should  have  been  allowed,  and  we  think  with  the  court  in 
its  instructions  to  the  jury,  that  if  they  found  that  the  spe- 
cial contract  had  been  entered  into  in  good  faith,  the  railroad 
company  was  as  much  bound 'by  it  as  the  plaintiff  in  the 
action  below,  and  so  long  as  he  carried  out  his  part  of  the 
contract  according  to  its  terms,  he  had  a  right  to  expect 
the  defendant  below  to  do  the  same.  It  surely  would  not 
be  held  that  if  the  contract  had  been  made  within  a  few 
days  of  the  close  of  the  year,  that  either  party  had  a  right 
to  rescind  it  at  pleasure,  without  the  consent  of  the  opposite 


148  MARTIN  v.  UNION  PACIFIC  R.  R.  Co.    [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

party.  And  if  it  could  not  be  rescinded  if  made  a  very 
short  time  before  the  close  of  the  year,  the  difference  in  time 
would  not  give  them  any  more  right  to  do  so.  This  con- 
tract was  for  the  transportation  of  a  definite  quantity  of  hay, 
without  regard  to  time,  and  no  time  being  mentioned,  the 
legal  presumption  would  be  that  the  plaintiff  below  should 
have  a  reasonable  length  of  time  to  have  the  hay  carried 
over  defendant's  road,  and  unless  it  was  shown  that  he  was 
guilty  of  unnecessary  delay  in  doing  the  work,  he  was  enti- 
tled to  have  the  stipulations  of  the  contract  carried  out  in 
good  faith. 

With  regard  to  the  second  error,  we  do  not  clearly  see 
how  the  freight-books  could  be  admitted  in  evidence ;  the 
law  for  the  convenience  of  suitors  permits  the  account-books 
of  original  entries  to  be  given  in  evidence,  and  other  books, 
such  as  freight-books  of  a  railroad  company,  may  be  used  as 
memoranda  to  refresh  the  recollections  of  a  witness,  but  they 
can  only  be  used  for  that  purpose,  and  not  to  prove  that  the 
entries  therein  are  correct,  and  thus  make  out  a  case  unsup- 
ported by  other  corroborating  statements. 

The  third  error  is  too  indefinite  to  be  relied  upon ;  very 
possibly  the  judge  below  did  err  in  some  of  his  instructions, 
but  we  fail  to  see  in  the  instructions  given,  or  in  those  re- 
fused anything  to  mislead  the  jury  to  the  detriment  of  the 
defendant  below.  Another  error  complained  of  (for  there 
are  several  not  referred  to)  is  that  the  damages  are  excessive. 
This  may  possibly  be  true,  but  from  the  fact  that  the  case 
submitted  to  the  jury  was  to  be  determined  more  from  the 
facts  than  from  legal  propositions,  and  the  jury  being  com- 
petent to  pass  upon  the  facts,  the  courts  will  not,  as  a  gen- 
eral thing,  interfere  with  verdicts  of  this  character,  unless 
it  be  shown  that  there  was  a  misconception  of  the  facts  as 
given,  or  a  palpable  intention  to  commit  a  great  wrong.  We 
therefore  do  not  find  anything  to  justify  us,  as  an  appellant 
court,  to  interfere  with  the  verdict. 

The  judgment  is  affirmed. 


July,  1873.]  WALDSCHMIDT  v.  TEK.  OF  WYOMING.          149 

Argument  for  Plaintiff  in  Error. 

WALDSCHMIDT  v.  THE  TERRITORY  OF 
WYOMING. 

PRACTICE — CRIMINAL  CASKS. — The  provision  of  the  statutes,  that  in 
criminal  cases  the  plea  of  the  defendant  shall  be  entered  by  the  clerk 
of  the  court  upon  the  indictment,  is  simply  directory  not  mandatory. 

IDEM. — A  failure  so  to  do,  unless  the  defendant  is  by  some  means  mis- 
led thereby,  is  not  a  fatal  error,  or  one  to  justify  a  reversal. 

ERROR  to  the  Second  District  Court  for  Carbon  County. 
T.  J.  Street,  for  plaintiff  in  error. 

The  plaintiff  in  error  in  this  cause  relies  upon  the  follow- 
ing facts  and  law : 

I.  The  plaintiff  in  error  was  indicted  in  Lararaie  county 
for  an  assault  with  intent  to  murder,  at  the  July  term,  1873, 
of  said  court  (see  record,  page  5,  line  1)  ;  and  the  defend- 
ant afterwards  caused  the  venue  of  said  cause  to  be  changed : 
See  record,  page  9 ;  also  pages  11,  12  and  13. 

II.  Afterwards  the  cause  was  tried  in  Carbon  county : 
See  pages  in  record,  11,  12,  13,  15,  25,  26,  27,  inclusive. 

III.  Because  the  court  erred  in  overruling  the  motion  for 
a  new  trial,  for  the  reasons  stated  in  the  motion.     The  in- 
dictment was  clearly  insufficient,  because  the  plea  was  not 
indorsed  on  the  indictment,  and  the  court  in  Carbon  county 
could  not  try  the  defendant  thereon :  Laws  Wyoming  Ter- 
ritory, p.  486,  sec.  114. 

IV.  The  statute  is  mandatory.     The  case  could  only  be 
tried  on  the  record  before    the  court,  and  no  amendment 
could  be  made  to  the  record  after  trial.     The  Carbon  county 
court  could  only  entertain  jurisdiction  by  a  strict  compli- 
ance with  the  statute  changing  the  venue :  (Laws  Wyo.  p. 
486,  sees.  115,  116).     The  case  must  have  been  tried  in  Car- 
bon county,  as  if  the  indictment  had  been  originally  made 
there,  and  the  only  jurisdiction  of  the  Carbon  county  court 
was  based  on   the   certified  transcript  of  the  clerk  of  the 
Laramie    county  court,   which   was  on    file  in  the   Carbon 
county  court.     There  is  no  provision  of  the  statute  permit- 
ting  the  records  of  the  Carbon  county  court  to  be  amended 


150  WALDSCHMIDT  v.  TEB.  OF  WYOMING.   [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

after  judgment;  nor  does  it  appear  that  any  such  amend- 
ment has  ever  been  made,  or  attempted  to  be  made.  The 
additional  transcript  filed  on  the  motion  of  defendant  in 
error,  suggesting  a  diminution  of  the  record,  does  not  ap-. 
pear  to  be  any  part  of  the  record  of  the  court  in  which  the 
case  was  tried.  Unless  the  Carbon  county  court  acquired 
jurisdiction  by  a  compliance  with  the  law  on  the  part  of  the 
prosecution,  the  trial  was  a  nullity.  No  person  accused  of 
crime  is  bound  to  make  a  record  showing  jurisdiction.  The 
presumption  of  innocence  is  so  great  that  the  prosecution 
must  show  every  necessary  ingredient  of  jurisdiction  and 
guilt  affirmatively  at  the  time  of  the  trial.  This  was  not 
done :  Laws  Wyo.  1869,  p.  486,  sees.  114,  115,  116. 

V.  It  does  not  appear  from  the  record  that  the  ground  of 
motion  for  new  trial  was  untrue  as  to  the  incompetency  of 
one  of  the  jurors :  See  record,  pp.  17,  19,  31. 

VI.  It  is  objected  that  the  defendant  in  error  has  no  right 
to  appear  in  the  court  except  by  the  attorney  of  record : 
Laws  Wyo.  1869,  p.  492,  sees.  145,  188,  501 ;  p.  626,  sees. 
578  et  seq. 

VII.  The  plaintiff  in  error  is  entitled  to  a  fair  and  com- 
plete review  of  the  proceedings  in  the  court  below,  and 
since  the  filing  of  the  amended  transcript  by  the  defendant 
in  error  is  entitled  to  have  all  the  matters  therein  referred 
to  certified  and  brought  up,  to  the  end  that  errors  may  be 
assigned  and  in  furtherance  of  justice  :    Laws   Wyo.  533, 
534,  sections  148  et  seq. 

W.  W.  Corlett  and  C.  W.  Bramel,  for  defendant  in  error. 

In  this  case  a  motion  is  made  by  the  territory  of  Wyoming 
to  affirm  the  judgment,  because  the  appellant,  Emilie  Wald- 
schmidt,  in  filing  her  transcript,  has  failed  to  conform  to 
rule  7  of  this  court :  See  rule  7,  page  4,  of  Rules  of  Supreme 
and  District  Courts  of  said  territory.  The  object  of  said 
rule  is  to  facilitate  an  examination  of  the  record  by  the 
court  and  to  enable  the  court  to  refer  readily  to  such  por- 
tions of  the  record  as  are  material  in  connection  with  errors 
alleged  and  referred  to  in  briefs.  Without  a  compliance 


July,  1873.]  WALDSCHMIDT  v.  TEH.  OF  WYOMING.         151 

Argument  for  Defendant  in  Error. 

with  the  rule,  it  is  absolutely  impossible  for  the  attorneys 
for  the  appellee  to  comply  with  rule  7  in  framing  their 
briefs.  It  was  the  obvious  purpose  of  this  rule  to  render  a 
compliance  with  its  provisions  a  condition  precedent  to "  an 
examination  of  the  record.  If  this  was  its  purpose,  then 
it  is  clear  that  the  duty  of  the  court  is  simply  to  affirm  the 
judgment,  without  looking  into  the  record.  In  case  the  court 
proceeds  to  look  into  the  record  in  this  cause,  the  attorneys 
for  appellee  submit  the  following  in  answer  to  the  various 
errors  assigned. 

The  answer  to  the  first  error  assigned  is  simply  that  the 
record  does  not  show  any  such  error,  or  even  the  action  on 
the  part  of  the  attorney  for  appellant,  or  of  the  court,  as  is 
assigned  and  alleged  as  the  first  ground  of  error. 

The  second  error  assigned  is  contrary  to  the  fact,  because 
the  full  record  in  the  case  shows  that  the  defendant  in  the 
court  below  was  duly  arraigned,  and  plead  to  the  indict- 
ment. Besides,  the  defendant  below,  at  the  trial,  could 
not  rely  on  the  mere  absence  of  proof  in  the  record  to  show 
such  arraignment  and  plea  without  some  proof,  in  view  of 
the  fact  that  the  change  of  venue  was  taken  at  her  instance 
and  because  she  went  to  trial  without  objection,  upon  the 
ground  that  she  had  not  been  arraigned  or  pleaded.  As  no 
change  of  venue  can  be  granted  until  after  the  plea  of  "  not 
guilty,''  the  court  might  well  assume  that  such  plea  had 
been  made:  See  title  IX.,  chap.  74,  Laws  of  Wyoming, 
1869. 

In  answer  to  the  third  assignment  of  error,  it  is  enough 
to  say  that  the  failure  to  indorse  the  plea  on  the  indictment 
could  in  no  possible  way  affect  the  rights  of  the  defendant. 
And  errors  which  do  not  prejudice  the  party  alleging  them 
are  immaterial,  and  should  be  disregarded:  U.  S.  Digest, 
vol.  3,  p.  57  ;  54  111.  258 ;  30  Iowa,  133 ;  23  Mich.  24 ;  48 
Mo.  23.  The  third  and  fourth  errors  assigned  involve  a 
question  of  fact,  which  it  appears  was  settled  by  the  court 
below  upon  affidavits ;  and,  as  it  does  not  appear  that  the 
court  below  erred  in  passing  upon  that  question,  it  is  sub- 
mitted that  no  error  was  committed  by  the  court  below.  As 


152  WALDSCHMIDT  v.  TER.  OF  WYOMING.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

to  the  error  assigned  in  overruling  the  appellant's  motion 
to  set  aside  the  judgment,  it  is  enough  to  say  that  it  is  no- 
where specified  wherein  the  said  judgment  is  erroneous. 
And,  as  it  does  not  appear  that  said  judgment  is  erroneous 
in  any  respect,  prejudicial  to  the  appellant,  the  court  is  not 
authorized  to  regard  the  said  judgment  as  defective :  3  U.  S. 
Dig.  58. 

By  the  Court,  FISHER,  C.  J.  The  record  in  this  case 
shows  that  at  the  July  term  of  the  district  court  in  and  for 
the  county  of  Laramie,  in  the  first  judicial  district,  the 
grand  jury  found  an  indictment  against  Emilie  Waldschmidt, 
charging  her  with  an  assault  and  battery,  with  an  attempt 
to  commit  murder  by  means  of  a  certain  pistol  commonly 
called  a  revolver,  upon  one  August  Blucher.  To  which  in- 
dictment the  said  Emilie  Waldschmidt,  upon  being  ar- 
raigned, pleaded  "  not  guilty."  That  after  said  plea  she,  the 
said  E.  W.,  filed  an  affidavit  of  prejudice  on  the  part  of  the 
presiding  judge  at  the  first  judicial  district;  that  upon  the 
filing  of  which  a  change  of  venue  was  allowed,  and  the  pro- 
ceedings were  transferred  to  Carbon  county,  which  is  and 
was  in  the  second  judicial  district.  The  case  was  duly  tried 
and  a  verdict  of  "  guilty "  rendered  by  the  jury,  who  also 
fixed  the  penalty,  to  wit,  a  fine  of  one  hundred  dollars,  and 
the  payment  of  costs  by  defendant.  A  motion  in  arrest  of 
judgment  and  for  a  new  trial  was  duly  made  and  several 
errors  assigned,  among  which  were  the  following : 

1.  Because  the  defendant  was  never  arraigned  as  required 
by  statute ; 

2.  Because  the  plea  of  defendant  was  not  written  or  en- 
tered on  the  indictment  as  required  by  law ; 

3.  Because  J.  Rankin,   one   of  the  jurors  who  tried  the 
cause  was  not  a  legal  juror  in   the  territory  at  the  time  of 
the  trial,  which  fact  was  unknown  to  the  defendant  until 
after  the  verdict  of  the  jury  was  rendered  ; 

4.  Because  J.  Rankin,  one  of  the  jurors,  was,  on  account 
of  his  non-residence  at  the  time  of  the  trial,  incompetent 


July,  1873.]  WALDSCHMIDT  v.  TER.  OF  WYOMING.          153 

Opinion  of  the  Court — Fisher,  C.  J. 

to  act  as  a  juror  under  the  laws  of  this  territory,  and  cited 
the  sections  of  the  criminal  code  on  which  defendant  relied. 

On  the  part  of  defendant  in  error,  these  several  assign- 
ments were  denied.  The  motion  for  the  new  trial  was  over- 
ruled, to  which  ruling  the  defendant  below  by  her  counsel 
excepted,  and  the  record  is  brought  here  for  review.  The 
first  error  assigned  is  fully  met  and  contradicted  by  the 
record  in  the  district  court  for  Laramie  county,  by  which  it 
is  not  only  shown  that  the  defendant  in  that  court  was 
arraigned,  but  that  she  asked  for  and  was  allowed  time  to 
enter  her  plea,  and  that  she  subsequently  pleaded  "  not 
guilty."  The  second  error  assigned,  viz.,  that  the  plea  was 
not  entered  on  the  indictment  as  required  by  law. 

While  the  record  does  not  show  that  in  this  particular  the 
requirements  of  the  statute  were  strictly  complied  with,  yet 
we  do  not  find  that  by  the  failure  of  the  clerk  to  write  the 
plea  on  the  bill  of  indictment  that  the  defendant  in  the 
court  below  was  in  any  way  embarrassed  by  such  failure. 
And  it  is  one  of  the  well-settled  principles  of  the  law  that 
a  failure  to  conform  to  any  merely  directory  statute  which 
does  no  wrong  to  a  complaining  party  should  be  disregarded 
by  a  reviewing  court,  and  surely  the  mere  failure  to  make 
such  an  indorsement  on  the  indictment  could  not,  in  the 
nature  of  the  fact,  work  any  wrong  to  the  defendant  below ; 
hence  we  fail  to  see  any  substantial  error.  The  third  and 
fourth  errors  assigned  were  abandoned  by  the  counsel  for 
plaintiff  in  error  on  the  argument ;  hence  we  are  not  called 
upon  to  give  an  opinion  on  them.  But  we  may  say  that  if 
they  had  not  been  abandoned,  that  the  record  shows  con- 
clusively that 'there  is  nothing  in  the  errors  complained  of, 
inasmuch  as  the  juror  in  question  has  filed  an  affidavit 
which  has  found  its  way  into  the  record,  showing  that  he 
possessed  all  the  requisite  qualifications  to  constitute  him 
a  competent  juror. 

We  therefore  remand  the  case  to  the  district  court,  with 
directions  to  that  court  to  carry  out  the  sentence  in  the  case, 
adding  the  costs  which  have  accrued  in  this  court  as  a  part 
of  the  sentence. 


DETERMINED   IN 


THE   SUPREME   COURT 

OF 

WYOMING  TEKRITOKY. 
MARCH  TEEM,   1874. 


WILSON  v.  THE  TERRITORY  OF  WYOMING. 

PRACTICE — CONTEMPT. — In  proceedings  against  a  party  for  construct- 
ive contempt  an  attachment  warrant  or  alternative  order  to  show 
cause  against  the  person  of  the  defendant  cannot  be  issued  until 
the  proper  affidavit  has  been  filed  to  give  the  court  jurisdiction. 

IDEM. — Where  an  attachment  was  issued  without  such  affidavit:  Held, 
that  it  was  an  error  which  could  not  be  cured  by  the  subsequent 
filing  of  an  affidavit. 

ERROR  to  the  District  Court  for  Laramie  County. 
The  opinion  contains  a  sufficient  statement  of  the  case. 
Thos.  J.  Street  and  Jason  B.  Broivn,  for  plaintiff  in  error. 
W.  W.  Coi'lett,  for  defendant  in  error. 

By  the  Court,  THOMAS,  J.  This  case  was  brought  to  this 
court  upon  a  writ  of  error  from  the  first  district  court,  in 
which  said  court  the  plaintiff  in  error  herein  had  been  found 
guilty  of  a  (constructive)  contempt  of  court,  and  was  sen- 
tenced to  pay  a  fine  of  five  hundred  dollars,  and  to  stand 
committed  until  the  same  was  paid.  It  appears  from  the 

155 


156  WILSON  v.  TERRITORY  OF  WYOMING.    [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

record  in  the  case  that  the  judge  of  said  district  court,  on 
the  eleventh  day  of  April,  1873,  at  the  city  of  Cheyenne, 
ordered  an  attachment  to  issue  against  the  body  of  said 
Posey  S.  Wilson,  for  the  purpose  of  bringing  him  before 
said  court  to  show  cause  why  he  should  not  be  punished  for 
a  contempt,  consisting,  as  it  was  subsequently  alleged,  of 
writing  from  Cheyenne,  Wyoming,  to  the  Omaha  Herald,  a 
newspaper  published  at  Omaha,  in  the  state  of  Nebraska, 
certain  articles  reflecting  upon  the  first  district  court  afore- 
said, and  upon  the  judge  .thereof. 

It  is  further  shown  by  the  record,  that  at  the  time  such 
order  of  attachment  was  made  there  were  no  affidavits  nor 
other  evidence  whatever  before  the  court  showing  that  a 
contempt  had  been  committed  by  the  plaintiff  in  error,  and 
that  although  an  affidavit  of  the  judge  of  said  court  was  sub- 
sequently filed  in  the  case,  yet  the  process  was  neither 
amended  nor  a  new  attachment  issued  upon  such  affidavit. 

It  is  further  shown  that  said  Wilson  was  convicted  of  con- 
tempt upon  his  own  answers,  and  that  no  other  testimony 
except  the  affidavit  above  mentioned  was  introduced  against 
him.  Without  entering  upon  the  question  of  contempt  in 
this  case,  and  without  extenuating  or  justifying  in  the  slight- 
est degree  the  very  reprehensible  conduct,  to  say  the  least, 
of  the  plaintiff  in  error,  and  without  considering  some  other 
irregularities  that  appear  upon  the  record,  we  are  of  the 
opinion  that  an  error  was  committed  by  the  district  court  at 
the  very  commencement  of  the  proceedings,  which  renders 
it  necessary  to  set  aside  the  judgment  thereof.  This  con- 
sisted in  issuing  the  process  of  attachment  without  any  valid 
evidence  whatever  before  the  court  upon  which  to  found 
such  a  proceeding,  and  although  an  affidavit  made  by  the 
•'udge  was  subsequently  filed,  it  could  not  cure  the  defect. 
In  order  to  have  made  the  proceeding  regular,  the  attach- 
ment should  have  been  set  aside  and  the  complainant  com- 
menced de  novo  upon  the  affidavit  then  filed. 

It  will  be  understood  that  we  intend  only  to  apply  this 
ruling  to  cases  of  constructive  contempt.  We  further  be- 


March,  1874.]  CARE  v.  WRIGHT.  157 

Argument  for  Plaintiff  in  Error. 

lieve  that  the  plaintiff  in  error  did  not  waive  any  of  his 
rights  in  these  proceedings  by  appearance,  answer  or  other- 
wise. 

Therefore,  upon  the  error  mentioned,  the  judgment  of  the 
district  court  should  be  reversed. 

Ordered  accordingly. 


CARR  v.  WRIGHT. 

PRACTICE — DEPOSITIONS. — A  motion  to  suppress  depositions  should 
embrace  and  set  forth  all  the  objections  thereto. 

IDEM. — Tart  of  the  exceptions  cannot  be  raised  and  argued  at  one  time 
and  part  at  another. 

IDEM. — The  argument  of  a  motion  to  suppress  depositions  must  be  made 
before  the  trial  commences. 

EVIDENCE — ATTACHMENT. — Where  certain  parties  attached  the  goods 
of  W.  as  the  property  of  W.  &  Co.,  and  W.  replevied  such  property 
on  the  ground  that  he  was  not  a  member  of  such  firm:  Held,  that 
on  the  trial  of  the  suit  in  replevin,  the  evidence  of  the  statements 
on  various  occasions  by  the  plaintiff  W.,  that  he  was  a  member  of 
such  firm,  was  admissible;  and  that  the  exclusion  by  the  court  of 
such  testimony  was  a  fatal  error. 

ERROR  to  the  First  District  Court  for  Laramie  County. 
The  opinion  contains  a  full  statement  of  the  case. 

D.  McLaughlin  and  Thomas  J.  Street,  for  plaintiff  in 
error. 

First  error  alleged:  That  the  court  erred  in  overruling 
the  defendant's  motion  in  the  court  below,  to  strike  from 
the  files  the  motion  of  plaintiff,  in  the  court  below,  to  sup- 
press the  depositions  taken  by  the  defendant. 

Second  error  alleged :  That  the  court  erred  in  sustaining 
the  motion  of  the  plaintiff,  in  the  court  below,  to  suppress 
the  depositions  taken  by  defendant.  These  may  be  con- 
sidered together,  as  they  relate  substantially  to  the  same 
matter.  It  appears  from  the  record,  that  on  the  fifteenth 
day  of  March,  1873,  the  depositions  of  Patrick  N.  Glynn, 


158  CARR  v.  WRIGHT.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

Thomas  Keyes,  Jacob  Solomon,  Peter  H.  Sharp,  W.  J. 
Hamilton  and  Daniel  Shea,  had  been  taken  at  Omaha,  state 
of  Nebraska,  to  be  used  on  the  trial  of  this  cause,  on  be- 
half of  the  defendant.  That  notice  of  the  time  and  place  of 
taking  depositions  had  been  served  on  E.  P.  Johnson,  one 
of  the  plaintiff's  attorneys ;  and  that  said  depositions  had 
reached  this  court,  and  were  filed  herein  prior  to  March  20, 
1873.  That  on  the  said  twentieth  day  of  March,  1873,  plaintiff 
filed  his  motion  to  suppress  parts  of  said  depositions,  on 
the  grounds  of  "  incompetency  and  irrelevancy ; "  and  on 
the  same  day,  plaintiff  filed  his  second  motion  (under  sec. 
389,  Code,  1869),  requiring  the  court  to  "hear  and  decide  " 
plaintiff's  motion  to  suppress,  before  the  commencement  of 
the  trial.  The  court  did  so  "  hear  and  decide,"  and  over- 
ruled the  motion.  On  the  twenty-second  day  of  March, 
1873,  two  days  after  overruling  the  motion  to  suppress,  the 
case  was  called  for  trial,  a  jury  impaneled  and  sworn,  and 
the  plaintiff  introduced  evidence  to  establish  his  cause  of 
action. 

After  plaintiff  rested  his  case,  a  motion  for  a  nonsuit 
was  made  by  the  defendant,  which  prevailed.  On  the 
twenty-fourth  day  of  March,  the  plaintiff  applied  to  the 
court  to  set  aside  the  nonsuit,  which  the  court  did  on  the 
first  day  of  April,  1873 ;  and  on  the  eleventh  day  of  April, 
1873,  on  defendant's  application,  the  cause  was  continued 
until  next  term  (July  term,  1873).  On  the  twelfth  day  of 
August  (July  term),  1873,  the  case  was  called  for  trial,  and, 
by  agreement  of  attorneys,  Judge  Fisher  was  excused  from 
presiding  at  the  trial,  and  Judge  Carey,  by  consent,  pre- 
sided thereat.  On  the  thirteenth  day  of  August,  1873,  the 
day  after  the  case  was  called  for  trial  at  the  July  term, 
plaintiff  moved  to  suppress  the  depositions  taken  thereto- 
fore by  the  defendant,  for  the  reason  that  "  no  notice  of  the 
taking  the  same  was  given,  as  required  by  law."  This  mo- 
tion was  sustained  by  the  affidavit  of  E.  P.  Johnson,  which 
is  now  a  part  of  the  record.  Thereupon,  on  the  same  day, 
August  13,  1873,  defendant  moved  to  strike  the  motion 


March,  1874.]  CARR  v.  WRIGHT.  159 

Argument  for  Plaintiff  in  Error. 

of  plaintiff  to  suppress  the  depositions  from  the  files.  The 
court  denied  this  motion  of  the  defendant,  and  herein  is 
alleged  the  first  ground  of  error;  and  the  court  sustained 
the  motion  of  the  plaintiff  to  suppress  the  depositions 
theretofore  taken  by  defendant,  and  therein  is  alleged  the 
second  ground  of  error.  As  to  when  exceptions  to  deposi- 
tions may  be  taken,  other  than  for  incompetency  or  irrele- 
vancy, see  Laws  of  Wyoming,  sees.  382,  388,  389;  also 
Cowan  v.  Ladd,  2  Ohio  St.  522 ;  Crowell  v.  W.  Res.  Bank,  3 
Ohio  St.  406. 

Third,  fourth  and  fifth  errors  :  These  may  also  be  consid- 
ered together.  The  plaintiff  in  his  direct  examination  said  : 
"  On  the  forenoon  of  that  day,  I  was  in  possession  of  the 
above  described  goods,  at  Cheyenne,  on  Seventeenth  Street, 
in  the  store  of  Hays  &  Benton ;  and  was  at  that  time  the 
owner  of  the  same,  at  the  time  they  were  taken  by  defend- 
ant : "  page  34,  lines  8  to  15  inclusive.  The  plaintiff  having 
testified  on  his  own  behalf,  on  his  direct  examination,  that 
he  was  the  owner  of  the  goods,  it  was  proper  cross-examin- 
ation to  ask  him  the  question  referred  to ;  and  it  was  error 
in  the  court  to  sustain  the  objections  to  them  made  by  the 
plaintiff. 

Sixth  error :  The  refusal  to  permit  the  question  alluded 
to  from  being  asked,  was  manifestly  erroneous.  The  wit- 
ness was  not  required  to  state  what  the  papers  contained ; 
only  to  state  what  they  purported  to  be. 

Seventh,  eighth  and  ninth  errors  :  Clearly  error,  because 
no  connection  between  defendant,  Carr,  and  Mead  was  es- 
tablished, and  it  was  wholly  immaterial  how  Mead  took  the 
goods,  no  proof  showing  that  he  was  acting  for  Carr. 

Tenth  error :  Refusal  of  court  to  sustain  motion  for  non- 
suit. "  If  the  evidence  adduced  by  the  plaintiff  will  not 
authorize  the  jury  to  find  a  verdict  for  the  plaintiff,  it  is  the 
duty  of  the  court  to  nonsuit  him  :  "  Laws  1869,  p.  529, 
sec.  116  ;  Pratt  v.  Hall,  13  Johns.  334 ;  Labar  v.  Koplin,  4 
Const.  N.  Y.  547 ;  Stuart  v.  Simpson,  1  Wend.  376  ;  De 
Meyer  v.  Soivze.r,  6  Id.  436  ;  Wilson  v.  Williams,  14  Id.  146 ; 


160  CARR  ».  WRIGHT.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

Doane  v.  Eddy,  16  Id.  523;  McMartin  v.  Taylor,  2  Barb. 
356;  Carpenter  v.  Smith,  10  Id.  663;  2  Cal.  Dig.  Cases 
cited,  31. 

Eleventh,  twelfth,  thirteenth  and  fourteenth  errors:  See 
the  pleadings  in  the  action  ;  allegation  of  copartnership  in 
the  answer ;  no  denial  of  allegation  verified  by  the  affidavit 
of  the  plaintiff :  Code  1869,  p.  529,  sec.  116. 

Fifteenth  to  twenty-fourth  error,  inclusive :  May  be  con- 
sidered together,  and  for  same  and  similar  reasons. 

Twenty-fifth  and  twenty-sixth  errors :  May  be  considered 
together,  for  same  and  similar  reasons. 

Twenty-seventh  error :  Same  and  similar  reasons  and  au- 
thority as  for  eleventh  and  twelfth  alleged  errors. 

Twenty-eighth  error :  Refusing  to  set  aside  verdict  for 
errors  of  law ;  and  on  account  of  newly  discovered  evidence. 

Twenty-ninth  error :  see  Code  1869,  p.  592,  sec.  438. 

E.  P.  Johnson  and  W.  W.  Corlett,  for  defendant  in  error. 

This  is  a  petition  in  error  brought  to  reverse  the  judg- 
ment of  said  cause  rendered  in  the  district  court  of  Lara- 
mie  county. 

I.  The  first  two  errors  may  be  considered  as  one,  and  in- 
volve the  question  as  to  whether  the  court  erred  in  suppress- 
ing certain  of  defendant's  depositions  on  the  motion  of  the 
plaintiff.  The  motion  to  suppress  the  depositions  was 
based  on  insufficiency  of  the  notice  on  which  they  were 
taken  in  giving  the  plaintiff  sufficient  time.  As  the  record 
here  does  not  contain  that  notice,  the  propriety  of  the  de- 
cision of  the  court  below  cannot  be  considered  here.  But 
it  is  insisted  that  the  trial  commenced  before  said  motion 
was  heard.  But  the  record  shows  that  after  said  motion  to 
suppress  depositions  was  sustained,  the  jury  came  to  try 
the  cause :  See  page  31  of  record.  But  it  is  claimed 
that  because  previous  to  that  time  a  motion  to  suppress 
parts  of  the  depositions  for  incompetency  and  irrelevancy 
had  been  refused  that  the  matter  was  res  adjudicta.  But 
the  statute  permits  an  objection  for  incompetency  and 


March,  1874.]  CAKR  v.  WRIGHT.  161 

Argument  for  Defendant  in  Error. 

irrelevancy  to  be  made  011  the  trial  when  the  evidence  is 
offered.  That  right  cannot  be  taken  away.  Besides,  the 
motion  to  suppress  parts  of  said  deposition  was  overruled, 
simply  because  it  could  not  then  be  determined  whether  or 
not  the  objections  were  well  taken.  As  is  well  known,  it  is 
the  constant  practice  of  the  courts  to  postpone  the  final  .de- 
cision of  such  questions  until  the  trial  develops  whether  or 
not  the  evidence  objected  to  is  really  incompetent  or  irrel- 
evant. But  we  deny  that  the  decision  of  Judge  Fisher  was 
in  any  way  binding  on  Judge  Carey.  Judge  Carey  occu- 
pied precisely  the  same  position  and  possessed  the  same 
authority  that  Judge  Fisher  would  have  possessed  if  no 
changes  of  judges  had  occurred.  Now  if  Judge  Fisher  had 
remained  on  the  bench  on  the  trial  of  this  case,  he  would 
have  possessed  the  undoubted  power,  at  any  time  during 
the  term  of  said  district  court,  to  reverse  any  or  all  of  his 
decisions  in  any  case.  So  Judge  Carey,  taking  his  place, 
possessed  an  equally  undoubted  power  to  decide  any  ques- 
tion that  arose  before  him.  On  these  points,  see  section 
276  of  the  code  of  1869,  p/"562,  Laws  of  1869.  Also,  see 
section  387-9,  396  of  same  code,  p.  583,  Laws  of  1869. 

II.  As  to  the  third  error  assigned,  it  suffices  to  say  that 
the  question  was  not  proper  cross-examination,  and  did  not 
relate    to    any  matter  at  issue    in  the  case.     The  plaintiff 
merely  stated  on  his  examination  in  chief  that  on  a  certain 
named  day  he  was  the  owner  of  and  in  the  possession  of  the 
goods    replevied.     Nowhere    in    his    examination   in    chief 
did  he  testify  a  word  as  to,  from  whom,  or  when  or  where 
he  obtained  the  goods  ;  hence  the  defendant  had  no  right  to 
cross-examine  to  that  extent.     The  extent  to  which  the  right 
of  cross-examination  may  be  carried  rests  in  the  discretion  of 
the   court    at  nisi    priiis,    and   is    not  the    subject    of    re- 
view for  error:    See    Greenl.    on  Ev.,    sec.    449;  7  Cush. 
547-550. 

III.  The  fourth  and  fifth  errors  assigned  were  precisely 
the  same  as  the  third. 

IV.  The  sixth  error  assigned  is  absurd  upon  its  face.     To 
11 


162  CARE  v.  WRIGHT.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

allow  a  witness  to  state  what  a  paper  purported  to  be  would 
be  infinitely  worse  than  to  allow  the  witness  to  state  the  con- 
tents of  a  paper  without  first  showing  it  to  be  lost. 

V.  The  seventh  error  assigned  is  shown  to  be  worse  than 
puerile   by  examining   the    cross-examination   of    plaintiff, 
wherein  it  appears  that  the  fact  is  elicited  that  Mead  took 
possession  of  the  goods,  first  acting  for  the  defendant  Carr : 
See  record,  p.  30. 

VI.  The  eighth  error  assigned  has  just  as  much  in  it  as  the 
seventh  and  no  more  :  See  the  record,  p.  30. 

VII.  The  ninth  error  assigned  is  subject  to  the  same  re- 
marks as  the  seventh  and  eighth. 

VIII.  As  to  the  tenth  error  it  is  enough  to  say,  that  the 
defendants'  answer  admits  the  taking  of  the  goods.     That 
matter  was  not  in  issue,  therefore,  and  it  was  wholly  un- 
necessary to  prove  that  Carr  took  the  goods  at  all  as  that 
.was  admitted  in  the  answer.     But  even  if  such  proof  was 
necessary  we  simply  refer  the  court  to  the  testimony  of  the 
plaintiff  which  was  in  when  the  motion  to  non-suit  was  made  : 
See  record,  32  to  42  inclusive.  * 

IX.  As  to  the  eleventh  error,  it  suffices  to  say,  that  they 
were  clearly  inadmissible  in   the  first  place,  and  that   the  de- 
fendant finally  amended  his  answer  so  as  to  conform  it  to 
the  writs,  and  thereupon  the  writs  were  received  in  evidence. 
All  these  writs  simply  commanded    the  sheriff  to  levy  upon 
the  property  of  certain  firms  as  such,  not  giving  the  names 
of  the  members  of  the  firms.     Nothing  could,  therefore,  be 
taken  upon  these  writs,  but  the  property  of  said  firms,  and 
not  the  property  of  any  individual.     On  this  question  see 
sections,  830,  831,  832  and  833  of  the  code  of  1869  ;  Laws  of 
1869,  679,  680. 

X.  The  thirteenth  error    cannot   be    considered,    for  the 
reason  that  the  rejected  written  evidence  is  not  in  the  record  ; 
besides  it  is  apparent  that  the  summonses  were  inadmissible. 

XI.  The  fourteenth  error  cannot  be  considered,  because 
of  the  reasons  just  stated,  as  to  the  thirteenth  error. 

XII.  The    fifteenth    error    assigned,  is    disposed    of  by 


March,  1874.J  CARR  v.  WRIGHT.  163 

Opiuion  of  the  Court — Fisher,  C.  J. 

simply  considering  whether  the  question  asked  Powell  re- 
lated to  any  matter  in  issue  by  the  pleadings.  Under  the 
pleadings  the  only  issues  were :  1.  Was  George  L.  Wright 
the  owner  of  certain  designated  goods  at  the  time  of  the 
commencement  of  the  action  ;  or,  2.  At  the  said  time  did  the 
goods  belong  to  certain  firms,  designated  in  the  said  writs  of 
attachment.  Excepting  the  damages,  these  were  the  only 
questions  in  issue  in  the  case.  It  must  be  apparent  at  once, 
that  the  questions  propounded  to  Powell  had  not  the  re- 
motest relation  to  the  issues. 

The  sixteenth  error  assigned  is  subject  to  the  same  obser- 
vation as  the  fifteenth. 

Before  concluding,  counsel  desires  to  refer  to  the  claim 
made  by  counsel  for  defendant,  to  the  effect  that  the  allega- 
tions, as  to  the  existence  of  certain  partnerships  in  the 
answer  was  conclusive,  because  not  denied  by  a  sworn  reply 
from  the  plaintiff.  We  answer,  what  of  it  ?  The  defendant 
abandoned  every  answer  but  the  last  one  filed  by  amend- 
ment; and  now  suppose,  for  the  sake  of  argument,  we  admit 
that  the  allegations  respecting  the  existence  of  certain  firms 
as  made  in  said  answer  are  true,  how  does  that  help  the  de- 
fendant? Suppose  the  existence  of  those  firms  is  conclu- 
sively admitted ;  does  that  prove  that  they  own  the  property 
in  question.  But  perhaps  it  is  claimed  that  the  allegation, 
that  said  firms  owned  the  property,  is  also  to  be  taken  as 
true.  But,  clearly,  no  reply  can  be  filed,  save  in  answer  to 
a  set-off,  or  counter-claim.  There  is  neither  counter-claim 
nor  set-off  in  the  answer  in  this  case,  and  on  this  question  see 
sections  110  and  137,  code  of  1869 ;  Laws  of  1869,  528  and 
532. 

By  the  Court,  FISHER,  C.  J.  On  or  about  the  fourth  of 
January,  A.  D.,  1873,  several  attachments  were  issued  by 
merchants  in  the  city  of  Omaha,  in  the  state  of  Nebraska, 
against  a  firm  alleged  to  be  composed  of  the  defendant  in 
error,  and  several  others,  sometimes  known  by  the  name 
and  style  of  Wright  &  Co.,  G.  W.  Wright  &  Co.,  and  by 


164  CARR  v>  WRIGHT.  [Sup.  Ct. 

Opinion  of  the  Court— Fisher,  C.  J. 

several  other  designations.  That  by  virtue  of  these  several 
writs  of  attachment,  certain  goods,  wares  and  merchandise, 
m  the  possession  of  the  said  defendant  in  error,  who  it  was 
alleged  was  a  member  of  the  firm  aforesaid  in  all  its  various 
forms,  were  attached  to  satisfy  the  claims  of  the  attaching 
creditors  by  the  sheriff  of  Laramie  county.  Shortly  after 
the  service  of  the  said  attachments,  and  the  taking  posses- 
sion by  the  said  sheriff  of  the  said  goods,  wares  and  mer- 
chandise, the  defendant  in  error,  who  was  plaintiff  below, 
had  a  writ  of  replevin  issued,  and,  by  virtue  thereof,  the 
said  goods  were  returned  to  him  by  the  sheriff  and  on  the 
trial,  the  defendant  in  error,  who  was  plaintiff  below,  re- 
covered a  verdict  for  the  sum  of  fifteen  dollars.  The  counsel 
for  the  plaintiff  in  error,  who  was  defendant  below,  filed  his 
motion  for  a  new  trial,  and  assigned  the  same  errors,  which 
are  set  out  in  the  petition  in  error ;  said  motion  being  over- 
ruled, they  brought  the  case  to  this  court  and  assigned 
twenty-nine  errors  as  follows  : 

The  first  error  complained  of  is  that  the  court  below 
erred  in  refusing  the  motion  of  the  defendant  below  to 
strike  from  the  files  of  the  court  a  motion  filed  by  the  coun- 
sel for  plaintiff,  to  suppress  certain  depositions  taken  on 
behalf  of  defendant. 

The  record  shows  that  the  case  was  called  for  trial  on  the 
twelfth  day  of  August,  1873,  and  that  the  motion  to  sup- 
press the  depositions  was  filed  on  the  day  following,  after, 
as  it  is  alleged,  the  trial  -has  been  commenced.  While,  on 
the  other  hand,  it  is  claimed  on  the  part  of  defendant  in 
error  that  the  trial  did  not  commence  until  August  13,  and 
that  previously  to  the  beginning  of  the  trial  the  motion  to 
suppress  the  depositions  had  been  made  and  sustained.  It 
therefore  becomes  a  question  for  this  court  to  determine 
when  the  trial  properly  commenced,  so  as  to  know  whether 
under  the  statutes  the  time  had  expired  when  the  motion 
should  have  been  allowed  or  not. 

The  record  further  shows,  that  on  the  twentieth  day  of 
March,  1873,  the  then  attorneys  for  the  defendant  in  error, 
plaintiff  below,  viz :  E.  P.  Johnson  and  Win.  H.  Miller, 


March,  1874.]  CABB  v.  W BIGHT.  165 

Opinion  of  the  Court — Fisher,  G.  J. 

filed  a  motion  to  suppress  portions  of  the  same  depositions, 
on  the  grounds  of  incompetency  and  irrelevancy,  which 
motion  was  overruled,  and  it  is  therefore  claimed  that  the 
plaintiff  was  estopped  from  filing  any  other  exceptions ; 
first,  upon  the  ground  that  the  question  was  res  judicata  ;  and, 
secondly,  that  all  the  objections  to  the  depositions  should 
have  been  included  in  the  first  motion ;  and,  thirdly,  that 
the  trial  commenced  on  the  twelfth  of  August,  and  that  by 
the  provision  of  the  statute  it  was  too  late  to  sustain  the 
motion  to  suppress. 

The  next  error,  or  rather  set  of  errors,  complained  of  was 
the  refusal  of  the  court  to  permit  the  defendant  in  the  trial 
below  to  introduce  evidence  to  sustain  the  allegations  of 
the  answer  to  plaintiff's  petition  that  he,  the  plaintiff,  was 
a  member  of  the  firm  of  Wright  &  Co.,  G.  W.  Wright  & 
Co.,  and  the  various  forms  of  partnership  alleged  in  the 
affidavits  upon  which  the  attachments  were  issued — for  this 
purpose  the  defendant  called  several  witnesses — and  also 
claims  that  the  suppressed  depositions  would  have  estab- 
lished the  fact  as  stated,  viz :  that  the  plaintiff  below  in  this 
action  had  admitted  that  he  was  a  member  of  the  firm  thus 
variously  presented ;  all  of  which  the  defendant  below  was 
prevented  doing,  both  by  the  suppression  of  the  depositions 
and  the  refusal  of  the  court  to  admit  the  witnesses  called  to 
testify  to  the  statements  of  the  plaintiff  below  made  at 
various  times  and  to  different  persons. 

The  next  and  last  exception  requiring  special  notice  by 
this  court  was  the  refusal  of  the  court  below  to  order  a  non- 
suit at  the  close  of  the  testimony  for  the  plaintiff  below. 
The  record  shows  that  the  action  of  replevin  was  com- 
menced against  T.  Jeff.  Carr  in  his  individual  capacity, 
while  the  defendant  below  (Carr),  in  filing  his  answer,  de- 
nies all  the  allegations  of  the  plaintiff's  petition,  and  then 
justifies  as  sheriff.  For  this  reason  the  counsel  for  the 
plaintiff  below  contend  that,  although  the  answer  denies  the 
allegations  of  the  petition,  yet  this  farther  answer  in  justifi- 
cation is  such  an  admission  on  his  part  as  would  not  only 


CARR  v.  WRIGHT.  [Sup.  Ct. 


Opinion  of  the  Court — Fisher,  C.  J. 


relieve  the  court  from  granting  the  nonsuit,  but  leaves  it 
obligatory  on  the  court  to  refuse  the  motion. 

We  have  passed  over  a  large  number  of  the  exceptions 
filed  by  the  plaintiff  in  error,  inasmuch  as  the  whole  contro- 
versy is  involved  in  a  few  of  the  questions  raised  and  upon 
which  the  plaintiff  in  error  relies,  and  in  passing  upon  the 
exceptions  we  propose  to  vary  somewhat  the  order  in  which 
they  are  presented,  and  therefore  first  pass  upon  the  ques- 
tion of  the  nonsuit ;  while  we  shall  not  hold  it  to  be  error  in 
the  court  below  having  refused  the  nonsuit  when  asked, 
neither  would  we  have  held  it  to  have  been  error  to  have 
allowed  it.  There  is  so  much  in  the  discretion  of  the  court 
on  the  subject  of  nonsuits,  that  the  record  should  show  be- 
yond all  doubt  such  a  state  of  facts  that  a  court  of  nisiprius 
has  no  grounds  to  either  grant  or  refuse  the  demand  for 
nonsuit  (as  the  case  may  be)  when  made,  before  a  reviewing 
court  should  reverse  its  rulings ;  in  either  case  that  such 
reviewing  court  should  hesitate  in  setting  aside  the  proceed- 
ings for  either  such  granting  or  refusal.  And  while  we  think 
that  we  might  have  ruled  differently,  the  record  in  our  judg- 
ment does  not  present  such  a  state  of  facts  as  would  justify 
the  court  in  calling  it  error  to  refuse  the  nonsuit. 

On  the  questions  of  suppressing  the  depositions,  we  have  no 
doubt  that  the  court  erred.  First,  we  think  all  the  exceptions 
to  the  depositions  should  have  been  raised  at  the  time  the 
exceptions  were  presented  at  the  March  term,  so  that  the 
court  might  have  passed  upon  them.  It  was  folly  to  expect 
a  court  to  pass  upon  the  question  of  their  relevancy  or  per- 
tinence at  that  time,  inasmuch  as  neither  of  these  questions 
could  have  been  passed  upon  previous  to  the  hearing  of  the 
other  parts  of  the  testimony,  which  alone  could  enable  the 
court  to  know  whether  the  depositions  were  proper  or  not ; 
but  if  the  question  as  to  the  time  of  taking  the  depositions 
had  been  raised  there,  there  need  be  no  doubt  upon  that 
point,  as  it  is  one  settled  by  the  statute.  But  we  think  that 
one  question  having  been  raised,  it  was  the  duty  of  the  party 
raising  it  to  present  any  and  all  other  objections  at  the  same 


March,  1874.]  CARB  v.  WRIGHT.  167 

Opinion  of  the  Court — Fisher,  C.  J. 

time.  Furthermore  we  think  the  record  shows  that  the  trial 
had  commenced  before  the  motion  to  suppress  for  want  of 
proper  notice  was  raised.  It  was  held  by  the  counsel  for 
defendant  in  error,  on  the  argument  upon  the  exceptions, 
that  the  trial  commenced  when  the  jury  was  sworn.  This 
was  a  special  view  of  the  subject,  but  we  think  very  un- 
sound ;  sad  experience  has  taught  us  that  a  very  large  space 
of  time  is  often  consumed  in  the  trial  of  cases  before  the 
jury  is  sworn,  or  even  called,  and  we  think  the  record  clearly 
justifies  us  in  considering  this  case  on  trial  on  the  twelfth 
of  August,  1873,  while  the  motion  to  suppress  the  deposi- 
tions does  not  claim  to  have  been  filed  until  the  thirteenth; 
therefore  in  either  view  of  the  case  we  think  the  motion 
came  too  late.  If  we  are  right  in  holding  that  all  the  ex- 
ceptions should  have  been  taken  at  the  March  term,  and  we 
have  no  doubt  upon  that  question,  then  it  was  not  important 
whether  the  trial  commenced  on  the  twelfth  or  thirteenth  of 
August,  either  day  would  be  too  late  to  make  a  motion  to 
suppress.  While  admitting  that  this  point  was  not  well 
taken  by  the  plaintiff  in  error,  if  the  trial  commenced  on 
the  twelfth  of  August,  and  the  motion  filed  on  the  thirteenth, 
it  was  a  fatal  error  to  refuse  the  motion  to  strike  off  the 
plaintiff's  (below)  motion  to  suppress. 

On  the  several  exceptions  to  the  ruling  of  the  court  to  re- 
fuse the  defendant  below  to  prove  the  partnership  of  George 
L.  Wright  in  the  firm,  which  has  assumed  so  many  forms, 
we  think  there  was  manifest  error.  The  defendants  below 
set  out  in  their  answer  the  fact,  or  at  least  alleged  fact,  that 
the  plaintiff  was  not  the  owner  of  the  goods  taken  in  re- 
plevin, but  that  they  were  held  by  the  said  firm.  Surely 
they  had  a  right  to  offer  proof  to  establish  this  allegation ; 
and  if  the  questions  which  the  record  shows  were  put  to  the 
several  witnesses,  or  at  least  some  of  the  questions,  were 
refused,  we  are  at  a  loss  to  conceive  how  it  would  be  possi- 
ble to  establish  the  allegations  of  the  defendant's  answer. 

We  fail  to  find  anything  in  the  authorities  cited  which 
relieves  the  rulings  of  the  court  from  the  errors  above  re- 


168  TERRITORY  OF  WYOMING  v.  PIERCE.    [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

ferred  to.  While  we  have  passed  over  a  large  number  of 
the  exceptions  set  out  in  the  brief  of  the  plaintiff  in  error, 
we  think  there  are  ample  grounds  in  the  ones  passed  upon 
to  justify  us  in  refusing  to  affirm  the  proceedings  as  pre- 
sented in  the  record. 

We  therefore  reverse  the  judgment,  and  remand  the  case 
for  a  new  trial. 


THE  TERRITORY  OF  WYOMING  v.  PIERCE. 

PBACTICE  IN  CRIMINAL  CASES — ARREST  OF  JUDGMENT. — A  motion  in 
arrest  of  judgment  can  only  reach  defects  apparent  in  the  record. 

IDEM. — AVhere  a  question  raised  as  to  a  defect  in  the  jurisdiction  of  the 
court  did  not  appear  in  the  record :  Held,  that  a  motion  in  arrest  of 
judgment  was  improperly  sustained. 

IDEM. — No  defect  in  evidence  can  be  urged  for  an  arrest  of  judgment. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

A  sufficient  statement  of  the  case  is  contained  in  the  opin- 
ion. 

W.  W.  Corlett,  for  plaintiff  in  error. 

In  this  cause  no  objection  was  taken  at  any  time  to  the 
jurisdiction  either  of  the  grand  jury  or  the  court,  until  the 
same  was  taken  by  the  motion  in  arrest  of  judgment.  Pre- 
vious to  this  a  motion  for  a  new  trial  had  been  made  in  the 
case  and  overruled. 

I.  The  defect  in  jurisdiction  did  not  appear  in  the  record. 
A  motion  in  arrest  of  judgment  can  only  reach  defects  ap- 
parent in  the  record :  See  1  Arch.  Crim.  Prac.  and    Plead. 
672  et  seq.  ;  1  Bish.  Crim.  Pro.  sec.  850  et  seq.  ;  1  Whar.  sec. 
603. 

II.  On  the  question  of  the  jurisdiction  of  the  court :  see  1 
Bish.  on  Crim.  Law,  sec.  552  et  seq. ;  2  Whar.  on  Crim.  Law, 
sec.  1052  etseq.;  12  Pick.  496,  505,  506;  Burns  v.  People, 
1  Parker,  182,  185 ;  Riley  v.  The  State,  3  Humph.  649 ;  Rex 
v.  Burdetf,  4  Burn.  &  Aid.  95, 173  ;  Laws  of  Wyoming,  1869, 
p.  486,  sec.  115. 


March,  1874.J    TERRITORY  oi>  WYOMING  v.  PIERCE.      169 

Opinion  of  the  Court— Carey,  J. 

William  H.  Miller  and  W.  P.  Carroll,  for  defendant  in 
error. 

In  response  to  the  bill  of  exceptions  herein  filed,  in  behalf 
of  the  territory  of  Wyoming,  as  plaintiff  in  error,  by  the 
prosecuting  attorney  of  the  county  of  Laramie,  W.  W.  Cor- 
lett,  William  H.  Miller  and  W.  P.  Carroll,  attorneys  of  said 
court,  duly  appointed  by  J.  W.  Fisher,  chief  justice  of  said 
territory  and  judge  of  the  first  judicial  district,  to  argue 
against  the  prosecuting  attorney,  in  the  supreme  court,  all 
the  matters  which  may  be  properly  presented  to  said  court 
by  the  said  bill  of  exceptions  and  in  the  records  of  said 
cause,  duly  and  properly  certified  to  the  said  supreme  court. 
In  pursuance  of  said  appointment  we  will,  in  the  argument 
of  said  cause  and  of  the  errors  assigned  in  said  bill  of  ex- 
ceptions, and  for  the  purpose  that  the  judgment  of  the  court 
below  in  the  cause  may  be  sustained  by  the  said  supreme 
court,  refer  to  the  following  citations  and  authorities,  to 
wit:  1  Bright.  Fed.  Dig.  p.  319,  sec.  491,  U.-S.  v.  Me  Gill; 
and  sec.  492,  U.  S.  v.  Blad'm ;  also  to  2  Abb.  Nat.  Dig.  p.  77, 
31,  and  p.  617,  sec.  21;  1  Bish.  Grim.  Pro.  p.  48,  sec.  68 
and  the  following  sections ;  also  to  2  Green's  Rep.  (Iowa), 
286,  and  the  following  pages  in  case  of  Nash  v.  State,  2 
\Vhar.  Amer.  Crim.  Law,  sec.  1052  and  following  pages, 
with  notes  b  and  c ;  also  to  1  Bish.  Crim.  Law,  sec.  67,  and 
following  pages  and  notes  ;  2  Black.  268  ;  Laws  of  Wyoming, 
1869,  chap.  15,  p.  291,  title  Common  Law ;  Laws  of  Wy- 
oming, 1869,  p.  500,  sec.  184 ;  19  How.  395,  445  and  451 ; 

1  Kent,  p.  363,  sec.  341-2,  also  p.  500  and  354  following ; 

2  Story  on  Con.  p.  484,  sec.  1645 ;  also  p.  568,  Organic  Act 
Wyoming  territory ;  Bennet  &  Heard,  2  Mass.  Dig.  48  ;  1 
Bright.  Fed.  Dig.  p.  506,  sec.  97,  also  sees.  109,  110 ;  Ros. 
Crim.  Ev.  p.  180,  title  Jurisdiction. 

By  the  Court,  CAREY,  J.  This  is  a  bill  of  exceptions  pre- 
sented by  the  prosecuting  attorney  of  Laramie  county,  and 
filed  by  permission  of  this  court,  under  sections  146,  147, 
148  and  149  of  the  code  of  criminal  procedure. 


170  TERRITORY  OF  WYOMINO  v.  PIERCE.    [Sup.  Ot. 


Opinion  of  the  Court — Carey,  J. 


The  record  in  this  cause  shows  that  the  defendant  Richard 
Pierce,  was  indicted,  arraigned,  and  after  pleading  not  guilty, 
was  tried  and  convicted  of  the  crime  of  manslaughter  at  the 
November  term,  1873,  of  the  district  court,  first  judicial 
district,  in  and  for  the  county  of  Laramie.  The  jury 
that  found  the  verdict  fixed  the  term  of  imprisonment  at 
three  years.  The  defendant  at  the  same  term  moved  the 
court  to  set  aside  the  verdict  and  grant  a  new  trial,  which 
motion,  after  argument,  was  overruled.  Thereafter,  at  the 
same  term,  the  defendant  filed  a  motion  to  arrest  the  judg- 
ment, which  motion,  after  argument  by  counsel,  was  sus- 
tained by  the  court.  The  reason  assigned  in  the  motion  is 
as  follows  :  "That  the  grand  jury  which  found  and  returned 
the  indictment  had  no  authority  to  inquire  into  the  offense 
charged  in  said  indictment,  by  reason  of  its  not  being 
within  the  jurisdiction  of  the  court."  The  prosecuting  at- 
torney, under  section  146  of  the  code  of  criminal  procedure, 
excepted  to  the  ruling  of  the  court  in  sustaining  the  motion 
for  arrest  of  judgment,  which  exception  is  the  basis  of  the 
bill  of  exceptions  filed  in  this  cause.  The  motion  for  arrest 
of  judgment  is  in  the  language  of  first  subdivision  of  sec- 
tion 184  of  the  code  of  criminal  procedure,  which  provides 
for  the  arrest  of  judgment  in  certain  cases. 

The  question,  therefore,  presented  to  this  court  for  de- 
cision is,  whether  the  district  court  erred  in  arresting  the 
judgment  which  reduces  itself  under  the  motion  to  the 
proposition  whether  the  cause  did  exist  for  an  arrest  of 
judgment  as  is  alleged  in  said  motion.  The  law,  as  held  by 
the  courts  of  England  and  adopted  by  the  courts  of  this 
country  in  the  absence  of  statutory  provision,  is,  that  a 
cause  for  which  a  motion  for  arrest  of  judgment  may  be 
grounded,  must  be  an  objection  which  arises  upon  the  face 
of  the  record  itself,  and  which  makes  the  proceedings  ap- 
parently erroneous,  and  no  defect  of  evidence  can  be  urged 
'for  arrest  of  judgment :  1  Archibald's  Grim.  Prac.  671 ;  1 
Bishop's  Grim.  Proc.  sec.  850 ;  Whart.  Grim.  Law.  sec. 
3043,  and  cases  cited  therein.  The  foregoing  has  also  been 


March,  1874.]    TEBEiTOitY  OP  WYOMING  v.  PIERCE.      171 

Opinion  of  the  Court — Carey,  J. 

held  to  be  the  latv  in  Indiana,  where  the  statute  similar  to 
oui-s,  provides  that  judgment  may  be  arrested  on  a  vordict 
when  there  is  a  want  of  jurisdiction  in  the  court  over  the 
offense  charged:  5  Ind.  1.  The  crime  of  manslaughter  is 
an  offense  against  the  laws  of  this  territory;  and  section  115 
of  the  code  of  criminal  procedure  provides  that  offenses  must 
be  tried  in  the  county  where  committed,  unless  there  is  a 
change  of  venue  or  judge. 

The  indictment  in  this  case  charges  that  the  defendant 
committed  the  crime  of  manslaughter  within  the  county  of 
Laramie.  The  grand  jury  that  found  the  indictment  was 
impaneled  in  the  district  court,  sitting  in  and  for  said  county, 
to  inquire  into  all  offenses  alleged  to  have  been  committed 
in  said  county.  The  jurisdiction  of  the  said  court  is  exten- 
sive with  the  boundaries  of  the  said  Laramie  county,  and 
there  can  be  no  doubt  that  it  had  jurisdiction  of  the  offense 
as  charged  in  the  indictment.  If  the  evidence  did  not  main- 
tain the  charge  in  the  indictment  and  justify  the  verdict  of 
the  jury,  and  the  court  overruled  a  motion  for  a  new  trial 
on  this  ground,  it  should  have  been  assigned  as  error  by 
the  defendant.  No  defect  "in  the  evidence  can  be  urged  as 
a  ground  for  an  arrest  of  judgment.  Any  matter  for  which 
a  new  trial  may  be  granted  is  waived  by  neglecting  to  move 
for  a  new  trial  for  that  reason  :  12  Indiana,  675  ;  14  Id.  540  ; 
and  15  Id.  274. 

For  the  foregoing  reasons  the  decision  of  this  court  is ; 
that  the  district  court  should  not  have  sustained  the  motion 
for  arrest  of  judgment  on  the  verdict. 


172  BotfNIFIELD  V.  PRICHi  [Slip.  Ct. 


Argument  for  Plaintiff  in  Error. 


BONNIFIELD  v.  PRICE. 

DEMURRER. — Where  a  petition  upon  its  face  shows  that  the  claim  upon 
which  the  action  is  brought  is  barred  by  the  statute  of  limitations, 
or  that  a  plea  of  that  statute  may  be  successfully  interposed,  a  de- 
murrer to  the  petition  on  that  ground  should  be  sustained. 

IDEM. — Where  a  demurrer  is  sustained  or  overruled,  it  lies  solely  in  the 
discretion  of  the  court  whether  or  not  to  permit  either  party  to 
amend  his  pleadings. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

The  opinion  of  the  court  contains  a  full  statement  of  the 
facts  in  this  case. 

E.  P.  Johnson,  for  plaintiff  in  error. 

It  is  contended  that  the  court  erred  in  sustaining  the  de- 
murrer for  two  reasons  :  1.  Because  the  defense  of  limitation 
cannot  be  set  up  by  demurrer ;  2.  Because  the  petition  did 
not  show  on  its  face  that  the  action  was  barred. 

I.  It  has  long  been  settled  by  almost  universal  practice 
that  the  defense  must  be  pleaded  specially  or  it  is  waived : 
Angel  on  Lim.  In  some  states  where  codes  prevail,  it  has 
been  held  demurrer  would  lie  unless  it  appears  upon  the 
face  of  the  petition  that  the  action  is  barred,  but  the  reason 
given  is  that  such  was  the  English  chancery  practice,  and 
the  code  practice  comes  nearer  that  than  any  other,  and  the 
chancery  rule  was  accordingly  adopted :  2  Cal.  Digest,  99 ; 
8  Ohio  St.  215,  423.  But  it  is  obvious  that  inasmuch  as  the 
chancery  and  law  practice  are  not  merged  but  remain  sep- 
arate in  this  territory,  that  reasoning  does  not  apply  to  us. 
But  aside  from  the  inconvenience  of  placing  ourselves  in  an 
anomalous  position  as  regards  the  practice  or  the  authority 
of  other  states,  whose  reasons  for  the  same  do  not  apply  to 
us,  it  is  submitted  that  this  court  is  bound  by  the  law  as 
expounded  by  its  appellate  court.  The  supreme  court  of  the 
United  States,  acting  on  cases  that  come  up  from  states, 
acts  with  reference  to  the  construction  of  state  statutes,  as 
an  inferior  court,  by  simply  adopting  the  construction  of  the 


March,  1874.]         BONNIFIELD  v.  PRICE.  173 

Argument  for  Defendant  in  Error. 

state  courts.  But  its  relation  to  the  territories  is  that  of  a  su- 
preme court,  vested  with  authority  to  expound  the  law,  and 
its  decisions  are  not  only  to  be  respected  by  the  territorial 
courts,  but  they  are  bound  by  its  judgments.  So  far  as 
that  court  is  authority,  the  rule  that  this  defense  must  be 
pleaded  is  maintained :  17  Wall.  168.  But,  in  the  second 
place,  should  it  be  held  to  be  correct  that  demurrer  will  lie 
to  a  petition  showing  upon  its  face  the  bar  of  the  statute,  it 
would  still  be  error  in  this  case  to  entertain  the  demurrer, 
for  the  reason  that  the  defense  does  not  appear  upon  its 
face,  and  is  only  made  to  appear,  if  at  all,  by  the  introduc- 
tion of  evidence,  to  wit,  the  laws  of  California,  of  which  the 
court  could  take  no  judicial  notice.  It  appears  from  the 
face  of  the  petition,  that  judgment  was  rendered  in  Califor- 
nia, upon  which  suit  was  brought.  There  is  no  allegation 
that  any  of  the  parties  are  or  ever  have  been  residents  of 
Wyoming,  and  in  the  absence  of  such  allegation,  the  pre- 
sumption is  that  all  are  residents  of  California.  Our  statute 
does  not  run  in  favor  of  persons  out  of  the  territory.  The 
court  cannot  take  judicial  notice  of  the  laws  of  California. 
The  authorities  are  all  to  the  effect  that  the  defense  must 
appear  on  the  face  of  the  pleading  to  render  it  demurrable : 
2  Cal.  Dig.  215 ;  8  Ohio  St.  423  ;  7  Id.  229. 

IF.  On  the  question  of  allowing  plaintiff  to  amend  after 
the  demurrer  to  his  petition  had  been  sustained,  counsel 
cites:  3  Black.  409;  Powell  on  A  pp.  Pro.  163,  196 ;  1 
Nash,  300;  20  U.  S.  Dig.  649;  12  Id.  p.  426,  sec.  168;  9 
Peters,  405. 

D.  McLaughlin,  for  defendant  in  error. 

Action  on  a  judgment  of  the  ninth  district  court  of  the 
State  of  California.  Judgment  entered  December  14,  1861. 
Suit  begun  in  first  district  court  of  Wyoming,  November, 
1873,  or  nearly  twelve  years  after  obtaining  judgment. 
Defendant  Price  appears  and  demurs  specially  to  the  peti- 
tion. Demurrer  sustained.  The  court  was  correct  in  sus- 
taining the  demurrer. 


174  BONNIFLELD  V.  PRICE.  [Slip.  Ct. 


Argument  for  Defendant  in  Error. 


I.  The  complaint  does  not  allege  that  the  court  that  ren- 
dered the  judgment,  viz :   the  district  court  of  the  ninth 
judicial  district  of  the  state  of  California,  was  a  court  of 
general  jurisdiction ;  or  that  for  any  special  reason  it  was  a 
court  of  competent  jurisdiction,  and   had  acquired  control 
over  the  person  of  the  defendant  and  the  subject  of    the 
action.     "  A  complaint  on  a  judgment  of  a  circuit  court  of 
another  state  must  either  aver  the  fact  of  the  existence  of  a 
general  jurisdiction  in  that  court,  or  it  must  aver  a  limited 
jurisdiction   which   extended   to    the    cause    of  action   for 
which  the  judgment  was  recovered,  whatever  it  was,  and 
that  the  court  had  jurisdiction  of  the  person  of  the  defend- 
ant."    Petition  does  not  state  that  the  judgment  sued  upon 
"  was  duly  given  or  made :  "     McLaughlin  v.  Nichols,  13  Abb. 
Pr.  Rep.  244r  cited  6  Abb.  N.  Y.  Dig.  466,  n.  316;  to  the 
same  purpose,  see  1  Abb.  PL   &  Pr.  334 ;  Voorhies'  Code, 
326,  note*6  ;  Seney's  Code,  162;  2  Handy,  163. 

II.  The  plaintiff's  petition  does  not  state  the  name  of  the 
court  in  which  the  action  is  pending,  as  required  by  section 
92,  subd.  1,  Code  1869.     The  rame   of  the  court  is  "  The 
district  court  of  the  first  judicial  district  of  the   territory 
of  Wyoming,"  and  not  the  "  first  district  court  in  and  for 
Laramie  county,  sitting." 

III.  No  copy  of  the  written  instrument  upon  which  this 
action  is  founded,  i.  e.,  the  transcript  of  the  judgment,  is 
attached  to  and  filed  with   the  petition ;  nor  is  the  reason 
stated  in  the  pleading  why  it  is  not  so  attached  and  filed : 
See  sec.  127,  Code  1869.     See  Freeman  on  Judgments,  and 
10  Cal.  Rep.  307,  that  a  judgment  of  that  state  is  both  a 
record  and  a  contract ;  that  for  the  purpose  of  issuing  exe- 
cution it  is  a  record,  but  to  be  used  as  evidence  it  is  a  con- 
tract, and  the  transcript  is  as  much  the  written  instrument 
as  a  note  or  bill  would  be. 

We  come  now  to  the  consideration  of  the  statute  of  lim- 
itations of  Wyoming  territory,  and  to  its  application  to  the 
present  case. 

Object  and  purpose  of  the  statute  stated :  3  Par.  Con.  61- 


March,  1874.]         BONNIFIELD  v.  PRICE.  175 

Argument  fur  Defendant  in  Error. 

67,  94-98;  5  Mason  C.  Ct  Rep.  523  ;  Lejfingwell  v.  Warren, 
2  Black,  599.  That  the  statute  of  limitations  may  be  inter- 
posed by  demurrer  when  the  lapse  of  time  appears  on  the 
face  of  the  petition  :  Vide  Williams  v.  First  Pres.  Church, 
1  Ohio,  508 ;  Sturges  v.  Burton,  8  Ohio,  215 ;  Mason  v. 
Cronise,  20  Cal.  211,  and  the  cases  referred  to  in  that  de- 
cision ;  Humbeit  v.  Trinity  Church,  24  Wend.  587.  Such 
defenses  are  not  to  be  discriminated  against:  Sheldon  v. 
Adams,  41  Barb.  55. 

Application  of  plaintiff  to  amend  his  petition  by  alleging 
that  the  statutes  of  California  and  of  Wyoming  had  not 
run  against  the  cause  of  action,  which  was  refused  by  the 
court.  That  the  court  was  right  in  this,  see  following :  1. 
It  would  be  a  substantial  change  of  the  cause  of  action, 
from  no  cause  of  action  to  a  legal  cause  of  action,  and 
would  wholly  change  defendant's  defense ;  2.  The  court  can 
amend  whatever  is  irregular,  but  cannot  amend  any  of  its 
proceedings  tending  to  confer  jurisdiction :  Hallet  v.  Right- 
ers,  13  How.  Pr.  43 ;  also  1  Abb.  Nat.  Dig.  79,  note  89  ;  Id. 
84,  note  141 ;  Wright  v.  McKelligon,  Wyo.,  and  1  Handy, 
573,  574.  All  going  to  support  the  ruling  of  the  court. 

In  the  Wisconsin  railroad  cases  this  fall,  Circuit  Judge 
Drummond  resisted  an  application  on  the  part  of  counsel 
for  the  state  of  Wisconsin  to  amend  the  pleadings  by  strik- 
ing out  the  name  of  one  of  the  railroad  companies,  and 
held  the  course  suggested  as  at  the  best  questionable.  The 
"cause  of  action,"  if  one  is  stated  in  the  petition,  was 
barred  by  the  statute  of  limitations  of  this  territory,  and 
also  by  the  laws  of  California,  when  this  suit  was  begun ; 
and  this  is  apparent  on  the  face  of  the  petition:  1.  The 
cause  of  action  accrued  more  than  five  years  before  the 
filing  of  the  petition,  that  is  to  say  about  twelve  years  be- 
fore ;  and  no  fact  is  averred  as  a  new  promise  to  pay,  or  the 
like  to  obviate  the  running  of  the  statute  against  the  cause 
of  action.  2.  "  When  a  cause  of  action  has  been  fully 
barred  by  the  laws  of  any  state,  territory  or  country,  where 
the  defendant  bad  previously  resided,  such  bar  shall  be  the 


176  BONNIFIELD  V.  PRICE.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

same  defense  in  this  territory  as  though  it  had  arisen  under 
the  provisions  of  this  title :  "  Sec.  29,  Code  1869. 

The  effect  of  this  section  of  our  code  is  to  give  full  effect 
to  the  statutes  of  limitation  of  the  state  of  California  within 
this  territory,  in  their  operation  on  the  judgment,  alleged  as 
the  cause  of  action  in  this  case.  This  must  be  admitted,  as 
the  intention  of  the  law-makers  is  clear  enough.  The  law 
of  that  state  limits  the  period  to  actions  on  judgments  to 
five  years  after  entry :  Hittel's  Laws  Cal.  para.  4359,  5149  ; 
also  Parker's  Laws  Cal.  para.  9129 ;  Mason  v.  Cronise,  20  Cal. 
211 ;  Sowers  v.  Crary,  30  Cal.  621 ;  Mann  v.  McAfee,  37  Cal. 
11.  These  authorities  are  sufficient  to  show  that  the  judg- 
ment sued  on  was  not  only  barred  by  the  statutes  of  limita- 
tion of  the  state  of  California,  after  the  fourteenth  day  of 
December,  1866,  but  that  it  became  defunct  and  was  dead, 
and  beyond  the  reach  even  of  a  new  promise  to  revive. 
"Every  process  which  may  be  required  to  completely  en- 
force a  judgment,  must  be  taken  out  within  five  years  after 
entry:  "  Sowers  v.  Crary,  30  Cal.  621. 

By  the  Court,  THOMAS,  J.  The  petition  in  this  cause 
alleges  that  the  plaintiff,  Bonnifield,  did  on  December  14, 
1861,  recover  judgment  in  the  district  court  of  the  ninth 
judicial  district  of  the  state  of  California,  against  the  said 
George  F.  Price  and  one  Tyson,  for  one  thousand  seven  hun- 
dred and  sixty-five  dollars  and  seventy-one  cents,  and  that 
the  same  still  remains  unpaid  and  in  full  force  and  effect. 
To  the  petition  the  defendant  interposed  a  special  demurrer, 
for  the  reason  "that  the  cause  of  action  did  not  accrue 
within  five  years  prior  to  the  filing  of  the  petition ;  "  and  the 
sustaining  of  this  demurrer  by  the  district  court  sitting  in 
and  for  Laramie  county,  is  the  principal  error  assigned  in 
the  petition  filed  in  this  court.  While  in  some  states  the 
statutes  especially  provide  that  a  defendant  can  avail  him- 
self of  the  statutes  of  limitation  only  by  plea  or  answer, 
yet  we  consider  the  rule  to  be  well  established  in  this  terri- 
tory, and  in  some  states  with  similar  laws  to  ours,  that  where 


March,  1874.]         BONNIFIELD  v.  PRICE.  177 

Opinion  of  the  Court — Thomas,  J. 

from  the  face  of  the  petition  it  is  apparent,  without  any  fur- 
ther showing,  that  the  statutes  of  limitation  have  commenced 
to  run,  that  a  defendant  may  take  advantage  of  the  same  by 
a  special  demurrer. 

In  this  case,  upon  the  decision  of  the  demurrer,  there 
was  no  legal  evidence  whatever,  before  the  court,  neither 
could  there  have  been  as  to  the  provisions  and  effect  of  the 
statutes  of  California.  The  petition  showed,  upon  the  face 
of  it,  that  the  claim  was  founded  upon  a  foreign  judgment, 
and  that  that  judgment  had  been  recovered  more  than  five 
years  prior  to  the  commencement  of  this  action.  In  our 
opinion,  therefore,  the  district  court  committed  no  error  in 
sustaining  the  said  demurrer. 

Another  error  assigned  is,  the  refusal  of  the  district  court 
to  allow  the  plaintiff  to  file  his  amended  petition.  We  be- 
lieve that,  where  a  demurrer  has  either  been  sustained  or 
overruled,  that  the  question  of  allowing  either  party  to 
amend  is  solely  in  the  discretion  of  the  court.  And  even 
were  the  rule  fully  established,  which  we  do  not  consider  it 
to  be,  that  an  appellate  court  may  reverse  a  decision  of  a 
court  below,  solely  upon  the  grounds  of  error  committed 
by  that  court  in  a  matter  entirely  within  its  discretion ;  we 
do  not  perceive  sufficient  error  in  this  particular  to  interfere 
with  that  decision. 

The  judgment  of  the  district  court  is  affirmed. 
12 


178  IVItfSON  l».  HUTTON.  [Sup.  Ct. 

Argument  for  Appellant. 

nV»i>'II  V  ii'Vf*'          ';   >'     if    II  Li>ii  I    4ii '  f     JfY  *'\'H    1     '-*/'         Yf./V*T 

IVINSON  t>.  HUTTON. 

PRACTICE — CHANCERY.— Where  a  till  of  complaiat  in  chancery  showed 
upon  its  face  that  complainant  had  a  remedy  at  common  law:  Held, 
that  the  court  erred  in  not  sustaining  a  general  demurrer  to  the  bill. 

IDEM. — Striking  out  certain  words  from  the  original  bill  of  complaint, 
especially  where  it  is  not  again  verified,  is  not  an  amendment  of 
such  bill. 

IDEM. — Neither,  is  it  such  an  alteration  or  amendment  as  could  change 
the  jurisdiction  from  a  court  of  common  law  to  a  court  of  chanqery. 

IDEM. — If  a  demurrer  is  sustained  to  a  bill  of  complaint,  and  complain- 
ant, by  permission  of  the  court,  amends  the  bill,  the  court  has  no 
power  to  limit  the  defendant's  time  to  answer.  That  is  fixed  by 
law. 

APPEAL  from  the  Second  District  Court  for  Albany 
County. 

W.  W.  Corlett  and  S.  W.  Downey,  for  appellant. 

The  appellant  seeks  a  reversal  of  the  judgment  and  de- 
cree of  the  district  court  in  this  cause  for  the  following 
errors  of  the  district  court,  which  it  is  alleged  appear  in  the 
record  in  this  cause,  and  which  are  claimed  to  be  material 
errors  and  prejudicial  to  the  appellant : 

I.  The  court  erred  in  ordering  the  defendant  to  plead  to 
the  so-called  amended  bill  of  complaints.     There  was  error 
in  this  for  two  reasons :  1.  Because  the  amendment  to  the 
bill  was  not  properly  made,  and  left  the  bill  as  amended 
without  being  sworn  to  ;  2.  Because  when  the  court  made 
the  order,  the  defendant,  under  the  statute,  was  entitled  to 
notice  of  the  filing  of  the  amended  bill,  said  notice  to  be 
served  on  him,   and  after  receiving  such  notice,    was  not 
bound  to  file  an  answer  until  the  fifth  Monday  thereafter. 
But  neither  the  notice  nor  the  time  was  given.     Upon  the 
first  error  assigned  see  the  following :  Code  of  Civil  Proce- 
dure of  1869,  sees.  761,  762,  p.  113 ;  1  Daniel's  Ch.  Plead, 
and  Prac.  402,  403,  note  ;  Rogers  v.  Rogers,  1  Paige,  424 ; 

Whitmarsh  v.  Campbell,  2  Id.  67. 

II.  The  court  again  erred  in  overruling  the  defendant's 
demurrer  to  the  amended  bill,  and  in  ordering  the  defend,- 


March,  1874.]          IVINSON  v.  MUTTON.  179 


ant  to  answer  the  amended  bill  by  September  17,  1873:  1. 
For  the  same  reasons  as  those  given  in  relation  to  the  first 
error  above ;  and,  2.  For  the  reason  that  the  bill  of  com- 
plaint was  wholly  defective,  and  did  not  state  a  ease  in 
equity.  See  authorities  cited  under  the  first  error  assigned 
above :  Daniels  Clu  Plead,  and  Prac.  374 ;  Watson  v.  Cody, 
1  Wis.  420 ;  Prescott  v.  Everts,  4  Id.  314 ;  Conner*  v.  Con- 
ners,  4  Id.  112;  Story's  Eq.  PL  sees.  251,  800;  Laycroft  v. 
Dempsey,  15  Wend.  83.  An  examination  of  the  bill  of 
complaint  in  the  cause  will  show  that  it  wholly  fails  to  point 
out  and  specify  the  item  or  items  of  the  account  as  ad- 
justed, wherein  it  is  alleged  the  mistake  occurred:  Herne  v. 
New  England  Mutual  Ins.  Co.,  Chicago  Legal  News,  Jan. 
30,  187-,  p.  145s  Sup.  Ct.  of  U.  S.,  October  term,  1874. 
Nothing  is  better  settled  in  chancery  pleading  than  the  fact 
that  a  bill  is  radically  defective  and  demurrable  which  does 
not  show  wherein,  an  account  is  erroneous  before  applica- 
tion can  be  made  to  open  the  account.  Again  the  bill  was 
defective  and  demurrable,  because  although  it  sought  to 
have  an  account  which  it  alleged  had  been  stated  and  set- 
tled between  the  parties  anew  by  the  court,  it  failed  to  first 
apply  to  have  the  account  so  stated  and  settled  opened 
with  leave  either  to  surcharge  or  falsify.  On  this  question 
see  Daniels  Chan.  PI.  and  Pr.  691-3  and  cases  there  cited. 
When  the  first  demurrer  was  sustained,  it  may  well  be  ques- 
tioned whether  the  complainant  could  bring  himself  within 
the  jurisdiction  of  a  court  of  equity  by  simply  striking  from 
his  sworn  bill  those  averments  which  disclosed  that  he  had 
an  adequate  remedy  at  law,  for  which  reason  the  court  sus- 
tained the  first  demurrer :  Daniels  Chan.  PL  and  Pr.  623. 

III.  The  third  error  complained  of  is  that  the  court  re- 
ferred the  case  to  a  special  master,  when  on  the  pleadings 
there  was  no  issue  of  fact  upon  which  evidence  should  be 
taken,  there  being  no  replication  on  file  in  the  case  at  the 
time.  Besides,  no  authority  can  be  given  to  a  master  in 
this  terrritory  to  report  findings  of  fact  from  evidence  taken 
before  him :  See  Code  of  Civil  Procedure  of  1869,  sec.  759. 


180  IVINSON  V.  HUTTON.  [Sup.  Ct. 

'Argument  for  Appellee. 

IV.  The  fourth  error  complained  of  is  that  the  court  erred 
in  permitting  the  complainant  to  file  a  replication  after  the 
evidence  was  all  taken,  and  the  case  ready  for  hearing  and 
argument  on  the  report  of  the  master  and  the  evidence. 
The  replication,  it  will  be  noticed,  states  that  it  is  filed  as 
of  the  September,  1872,  term,  thus  making  the  filing  nunc 
pro  tune.     The  order  of  the  court  herein,   it  will   be   ob- 
served, does  not  permit  it  to  be  filed  nunc  pro  tune.     Upon 
this  error  assigned,  see  Daniels  Ch.  PL  and  Pr.  826 ;   Childs 
v.  How,  1  Clark,  Iowa,  432 ;  Rogers  v.  Mitchell,  41  N.  H. 
154 ;  Pierce  v.  West,  1  Peters  C.  C.  R.  531 ;  Pickett  v.  Chilton, 
5  Manf.  467 ;  Scott  v.  Clarkson,  1  Bibb,  Ky.  277. 

V.  The  fifth  and  sixth  errors  assigned  in  this  case  vir- 
tually involve  the  same   point.     The  fifth  being  that  the 
court  erred  in  confirming  the  report  of  the  special  master, 
and  the  sixth  being  that  the  court  erred  in  entering  a  decree 
for  the  complainant  in  the  case.     The  questions  presented 
here,  of  course,  involve  many  minor  ones  relating,  in  part, 
to  the  action  of  the  special  master,  the  admissibility,  and 
effect  of  the  whole   and  certain  portions  of  the    evidence 
taken,  and  the  form  and  extent  of  the  decree,  as  well  as  the 
right  of  the  court  to  enter  any  decree  in  the  case,  save  one 
of  dismissal.     The  defendant,  in  his  answer,  insisted  upon 
the  fact  that  a  court  of  equity  had  no  jurisdiction,  and  asked, 
notwithstanding  that  his   demurrer  was   overruled,  that  he 
might  have  the  benefit  of  the  fact  on  the  hearing.     That  this 
question  may  be  taken  advantage  of  on  the  hearing,  admits 
of  no  doubt :  See  Story  on  Equity  Pleading,  section  447. 
Effect  of  appeal  in  chancery :  See  Pierson  v.  Wilson,  2  G. 
(Iowa)  20 ;  Stockwell  v.  David,  7  G.  (Iowa)  115  ;  Austin  $ 
Spicer  v.    Carpenter,  2  G.  (Iowa)  131-5 ;  Hil.   New  Trials, 
Appeals. 

J.  W.  Kingman,  for  appellee. 

The  final  decree  alone  can  be  appealed  from,  and  not  the 
interlocutory  orders  or  rulings  during  the  progress  of  the 
case :  See  Code  of  1873,  sec.  700  ;  2  Daniels  Chan.  Prac. 


March,  1874.]  IvitfsoN  v.  HuTTOtf.  181 

Opinion  of  the  Court — Fisher,  C.  J. 

1459,  1462,  note,  1472,  1477,  1485,  1488.  This  is  not  an 
appeal  as  now  presented  ;  but  a  writ  of  error  as  at  common 
law. 

By  Court,  FISHER,  C.  J.  This  was  an  appeal  from  the 
district  court  of  Albany  county.  The  parties  had  been  part- 
ners in  the  buying,  raising  and  selling  of  cattle,  horses,  etc., 
under  certain  terms  not  set  out  either  in  plaintiff's  bill  or 
defendant's  answer.  It  is,  however,  set  out,  that  on  or  about 
the  twelfth  day  of  April,  A.  D.  1873,  they  entered  into  a  stip- 
ulation for  the  dissolution  of  the  said  copartnership  by  the 
terms  of  which  they  agreed  that  the  defendant  was  to  pay 
the  amount  which  the  plaintiff  had  contributed  to  the  capital 
of  the  firm,  and  five  thousand  dollars  in  addition  thereto,  as 
a  bonus  for  the  use  of  plaintiff's  money  and  his  service  as  a 
member  of  the  firm.  The  bill  originally  alleged  that  upon  a 
statement  of  the  accounts  being  made  by  the  clerk  of  the 
firm,  that  they  agreed  that  if  any  error  should  be  discovered 
that  they  would  mutually  correct  it. 

The  plaintiff's  bill  alleged  that  on  the  evening  of  the  day 
on  which  the  contract  of  dissolution  was  signed  by  the  par- 
ties, that  a  mistake  was  discovered  by  the  accountant,  by 
which  the  plaintiff  had  lost,  by  the  terms  of  the  statement, 
four  thousand  and  thirty-six  dollars  and  twelve  cents.  That 
on  the  attention  of  the  defendant  being  called  to  the  alleged 
error,  that  he  promised  to  re-examine  the  account  and  cor- 
rect the  error.  But  that  he  had  failed  and  refused  to  do  so. 
Whereupon  the  plaintiff  filed  his  bill  for  the  purpose  of  com- 
pelling the  correction  of  the  alleged  error.  The  case  coming 
on  to  be  heard,  defendant,  by  his  counsel,  filed  a  demurrer 
to  plaintiff's  bill,'  on  the  ground  that  the  plaintiff  had  his 
remedy  in  a  common  law  action  upon  defendant's  promise, 
which  demurrer  was  sustained.  Plaintiff  then  obtained  leave 
to  amend  his  said  bill,  which  he  did  by  erasing  the  alleged 
promise.  Defendant  filed  a  demurrer  to  the  amended  bill, 
which  was  overruled  and  defendant  required  to  answer, 
which  ruling  defendant  excepted  to,  and  is  assigned  as  error. 


182  IvitfsoN  e>.  HUTTOH.  [Sup.  Ct 

Opinion  of  the  Court— Fi^laer,  C.  J. 

A  special  master  was  appointed  to  take  testimony  and  report 
to  the  court,  to  which  exception  was  taken,  on  the  ground 
that  no  replication  had  been  filed  to  defendant's  answer;  the 
parties,  however,  agreed  upon  the  special  master.  The  mas- 
ter gave  notice  and  the  parties  met  and  took  their  testimony, 
and  the  master  made  his  report,  in  which  he  found  the  whole 
amount  of  plaintiff's  claim  to  be  due  and  owing  by  defendant. 
The  plaintiff  then  filed  his  replication  as  of  the  preceding 
term.  And  the  court  awarded  a  decree  in  accordance  with 
the  special  master's  finding,  to  all  of  which  the  defendant's 
counsel  duly  excepted,  and  presented  their  bill  of  exceptions 
to  this  court  in  the  form  of  a  petition  in  error,  assigning  a 
large  number  of  errors,  many  of  which  it  will  not  be  neces- 
sary to  examine. 

The  first  error  assigned  is  as  follows :  Because  the  amended 
bill  was  not  properly  made  and  left  the  bill  as  amended  with- 
out being  sworn  to ;  because  when  the  court  made  the  order, 
the  defendant  under  the  statute  was  entitled  to  notice  of  the 
filing  of  the  amended  bill,  said  notice  to  be  served  on  him ; 
and  after  receiving  such  notice  was  not  bound  to  file  an  an- 
swer until  the  fifth  Monday  thereafter,  but  neither  the  notice 
nor  time  was  given. 

2.  That  the  court  below  erred  in  overruling  defendant's 
demurrer  to  the  amended  bill. 

3.  That  the  court  erred  in  referring  the  case  to  a  special 
master,  when  on  the  pleadings  there  was  no  issue  of  fact 
upon  which  evidence  should  be  taken,  there  being  no  repli- 
cation on  file  in  the  case  at  the  time.     Besides,  no  authority 
can  be  given  to  a  master,  in  this  territory,  to  report  findings 
of  fact  from  evidence  taken  before  him:  See  Code  of  Civil 
Proceedings,  1869,  section  759. 

4.  That  the  court  erred  in  permitting  the  complainant  to 
file  a  replication  after  the  evidence  was  all  taken,  and  the 
case  ready  for  hearing  and  argument  on  the  report  of  the 
master  and  the  evidence,  and  cites :  Daniels'  Chan.  PL  and 
Pr.  826  ;   Child*  v.  Horr,  1  Clark's  Iowa  R.  432 ;  Rogers  v. 
Mitchell,  41  N.   H.   154 ;  Pierce  v.   West,  1  Peters,  C.  C.  R. 


March,  1874.]          IVINSON -v.  HUTTOK.  183 

Opinion  of  the  €ourt — Fisber,  C.  J. 

581 ;  Pickett  v.  Chilian,  5  Minn.  467 ;  Scott  v.  Clarkson,  1 
Bibb. ;  1  Ren.  277, 

5.  That  the  court  erred  in  confirming  the  report  of  the 
special  master  and  entering  a  decree  for  the  complainant  in 
die  case. 

The  plaintiff's  bill  as  originally  filed  clearly  presented 
grounds  for  a  common  law  action  in  assumpsit  upon  a  new 
promise,  made  after  the  signing  of  the  contract  for  a  disso- 
lution of  the  partnership  which  had  existed  between  the 
parties  to  the  suit;  and  the  amendment  to  the  bill  being 
made  by  a  simple  erasure  of  the  allegation,  which  gave 
jurisdiction  to  a  common  law  court,  we  think  was  not  such 
an  alteration  as  changed  the  jurisdiction  from  a  court  of 
law  to  tihat  of  a  court  of  chancery;  hence  if  the  plaintiff  had 
his  remedy  in  a  court  of  law,  the  defendant's  second  demur- 
rer should  have  been  sustained  for  want  of  jurisdiction  in  a 
court  of  equity.  If  this  is  a  correct  view  of  the  case,  it 
would  be  sufficient  to  justify  a  dismissal  of  plaintiff's  bill 
without  examining  any  ocf  the  subsequent  errors  complained 
of.  But  whether  this  is  so  or  not,  we  are  clearly  of  the 
opinion  that  the  court  erred  in  compelling  the  defendant  to 
answer  the  plaintiff's  bill  without  allowing  him  the  time 
provided  by  the  statutes  of  this  territory :  See  laws  of  1873, 
sections  667-8. 

Another  error  complained  of  is,  that  there  was  no  en- 
grossment of  the  amended  bill,  nor  was  the  bill  as  amended 
sworn  to.  The  nature  of  the  amendment  being  simply  cer- 
tain erasures  of  the  allegations  of  the  .original  bill,  it  may 
be  contended  that  it  was  not  necessary  that  the  bill  as 
amended  be  sworn  to,  inasmuch  as  there  was  no  new  matter 
set  out ;  but  the  statute  requires  not  only  that  the  bill  should 
be  sworn  to,  but  that  the  defendant  was  entitled  to  the  time 
given  to  answer,  viz :  the  fifth  Monday  after  the  amendment 
to  the  bill  was  filed. 

These  errors  might  be  cured  by  sending  the  case  back  to 
the  district  court,  but  we  are  of  the  opinion  that  the  plain- 
tiff being  entitled  to  bring  his  action  in  assumpsit  in  a  court 


184  IviNsotf  v.  HUTTON.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

of  law,  he  can  have  no  jurisdiction  in  a  court  of  equity,  and 
that  he  cannot  obtain  jurisdiction  in  such  court  by  simply 
erasing  a  substantial  allegation  from  his  bill.  Another 
error  complained  of  is,  that  the  case  was  referred  to  a 
master  to  take  testimony  before  any  replication  was  filed, 
and  consequently  before  the  case  was  at  issue,  but  the 
record  does  not  show  that  the  question  was  raised  at  the 
time  that  the  application  was  made  for  the  appointment  of 
the  special  master.  It  was,  however,  raised  at  the  time 
that  the  master  met  the  parties  for  the  purpose  of  taking 
the  testimony,  and  so  noted  on  the  record.  The  record 
shows  that  the  special  master  not  only  heard  and  reported 
the  evidence  to  the  court,  but  that  he  passed  judicially 
upon  various  questions  which  arose  during  the  hearing,  and 
presented  a  finding  upon  the  facts  proven.  'This  was  be- 
yond the  power  of  the  special  master,  by  the  provisions  of 
the  code  of  Wyoming.  The  duties  of  a  special  master  are 
to  simply  take  the  testimony  and  report  the  facts  to  the 
court  for  its  action,  and  not  to  return  his  findings  upon  the 
evidence. 

The  plaintiff's  bill  allowing  that  a  board  of  equity  had 
jurisdiction  is  defective,  in  the  fact  that  the  action  was 
based  upon  the  alleged  wrongful  statement  of  an  account 
between  the  parties ;  therefore  the  first  prayer  of  the  bill 
should  have  been  to  have  the  statement  opened,  with  leave 
either  to  surcharge,  falsify  or  correct  in  some  particular, 
and  the  particular  item,  or  items,  of  the  account  to  be 
amended  should  be  pointed  out,  so  that  the  chancellor 
might  readily  see  wherein  the  statement  was  defective  ;  none 
of  these  things  are  prayed  for  in  plaintiff's  bill.  The 
plaintiff  comes  into  court  asking  the  correction  of  the  state- 
ments specified  in  the  contract,  but  proceeds  to  set  up  and 
prove  a  contract  entirely  different  from  the  one  on  which 
the  action  is  based;  and  although  the  amended  bill  strikes 
out  the  alleged  promises  on  the  part  of  the  defendant  to 
correct  any  errors  which  might  be  discovered  by  a  re-exam- 
ination of  the  accounts  between  the  parties,  yet  a  large 


March,  1874.]          IVINSON  v.  HUTTON.  185 

Opinion  of  the  Court — Fisher,  C.  J. 

portion  of  the  evidence  goes  to  the  maintenance  of  such  a 
promise  ;  hence  the  testimony,  or  at  least  a  large  portion  of 
it,  is  not  responsive  to  the  allegations  of  the  bill.  Finding 
the  bill  thus  defective  and  uncertain  in  so  many  particulars 
we  might  send  it  back  to  the  court  below  for  correction. 
But  finding  the  plaintiff  has  a  clear  remedy  in  a  common 
law  court,  this  court,  if  that  be  so,  can  have  no  jurisdiction. 
We  are  constrained  to  refer  the  plaintiff  to  his  remedy  at 
law,  and  dismiss  the  bill, 
Bill  dismissed. 


REPORTS  OF  OASES 


DETERMINED  IN 


THE   SUPREME   COURT 

OF 

WYOMING  TERRITORY. 
MARCH  TERM,  1875. 


DOLAN  v.  CHURCH  ET  AL. 

PRACTICE. — An  application  for  change  of  judge,  under  the  provisions 
ei  the  statutes  of  the  territory  of  Wyoming,  must  be  made  in  the 
cause  before  it  is  definitely  set  for  trial. 

IDEM. — Where  the  application  was  made  after  both  parties  had  con- 
sented in  open  court  that  the  trial  of  the  cause  should  be  set  down 
for  a  day  certain;  Held,  that  it  was  too  late  to  make  such  applica- 
tion, and  that  the  moving  party  had  waived  his  rights  therein. 

IDEM. — In  order  to  have  an  error  considered  by  the  supreme  court  it 
must  be  properly  assigned  as  an  error,  and  presented  on  a  motion 
for  a  new  trial  in  the  court  below. 

ERROR  to  Laramie  County. 

A  sufficient  statement  of  this  case  is  contained  in  the 
opinion. 

Thomas  J.  Street,  for  plaintiff  in  error. 

On  November  28th,  1873,  the  plaintiff  sued  the  defendant 
in  an  action  of  replevin  to  recover  the  possession  of  thirty- 

187 


188  DOLAN  v.  CHURCH.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

two  and  a  half  tons  of  hay,  of  the  value  of  thirteen  dollars 
per  ton,  alleged  to  be  unlawfully  detained:  See  record, 
pages  1,  2,  3.  The  defendants  answered  general  denial  and 
plea  of  property  in  defendants :  See  record,  pages  5  and  6. 
Then  on  the  sixth  of  February,  1874,  at  the  adjourned  No- 
vember term  of  said  court,  this  cause  coming  on  for  trial, 
the  plaintiff  filed  an  affidavit  for  a  change  of  judge  (see 
record,  page  8),  which  was  overruled,  and  the  defendants 
introduced  their  testimony,  and  the  jury  found  generally  for 
the  defendants  in  the  sum  of  two  hundred  and  sixty  dollars. 
A  motion  for  new  trial  was  duly  made  and  overruled  (record, 
pages  11  and  12),  and  judgment  rendered  for  defendants  on 
the  verdict:  Record,  pages  15  and  16.  The  case  comes  to 
this  court  on  petition  in  error.  We  allege  as  error : 

I.  The  refusal  of  the  court  to  grant  a  change  of  judge  as 
prayed  for :  Laws  Wyoming,  1869,  517,  559 ;  Organic  Act 
Wyoming  Territory. 

II.  Because  of  the  error  of  the  court  in  overruling  the 
motion  for  a  new  trial. 

III.  Because  the  court  erred  in  pronouncing  judgment  on 
the  verdict.     The  verdict  was  not  in  proper  form  and  will 
not  support  the  judgment.     In  replevin  the  verdict  must 
conform  to  the  statute  :  Laws  Wyoming,  1869,  543,  sec.  195 ; 
Id.  1873,  54,  sec.  180 ;  Powell  on  App.  Proc.  145 ;  7  Ohio, 
232  ;  2  Nash,  828,  829. 

W.  W.  C&rlett,  for  defendant  in  error. 

The  sole  error  relied  upon  in  this  case  for  a  reversal  of 
judgment  is  that  the  district  court  erred  in  overruling  the 
motion  of  the  plaintiff  in  the  case  for  a  change  of  venue 
upon  the  affidavit  of  the  plaintiff  filed  for  that  purpose. 
From  the  bill  of  exceptions  (page  7)  it  appears  that  the 
cause,  by  consent  of  both  parties,  was  set  down  for  trial  on 
the  sixth  day  of  February,  1874,  and  having  been  so  set  for 
trial  on  that  day,  afterwards  the  said  motion  for  a  change  of 
venue  was  interposed.  The  court  overruled  the  motion, 
simply  because  it  was  made  too  late. 


March,  1875.]  DOLAN  v.  CHURCH.  189 

Opinion  of  the  Court— 'Thomas,  J. 

As  it  was  agreed  fco  try  the  case  on  February  6,  1874,  be- 
fore any  change  of  venue  was  asked  for,  it  was  necessarily 
an  agreement  to  try  the  case  in  the  court  where  it  was  pend- 
ing. By  so  agreeing  the  plaintiff  waived  his  right  to  a 
change  of  venue.  The  statute  allowing  the  change  to  be 
made  is  solely  for  the  benefit  of  the  party  asking  therefor. 
Hence,  the  right  is  one  which  the  party  can  waive.  On 
these  points  see  Broom's  Leg.  Max.  136-7-8,  699,  700,  701 ; 
also  see  Laws  of  Wyoming,  1873,  163. 

The  argument  for  the  defendants  is  simply  this :  The 
right  of  the  plaintiff  to  have  a  change  of  venue  was  a  right 
personal  to  himself,  in  which  no  one  else  had  any  interest ; 
therefore  he  could  waive  that  right  by  first  making  an  agree- 
ment, in  the  face  of  the  court,  to  try  the  case  in  that  court 
on  a  certain  day,  because  to  change  the  venue  afterwards 
would  be  to  repudiate  the  agreement  so  made.  . 

By  the  Court,  THOMAS  J. :  The  petition  in  error  in  this 
case  alleges  but  two  rulings  in  the  district  court  which  are 
claimed  to  be  erroneous. 

The  first  is  that  the  court  refused  to  grant  a  change  of 
judge,  as  provided  for  by  the  laws  of  Wyoming  territory, 
the  plaintiff  having  applied  therefor  and  filed  the  usual  affi- 
davit. It  appears  by  the  bill  of  exceptions  that  by  consent 
of  parties  this  cause  was  set  down  for  trial  the  sixth  day  of 
February,  1874,  and  that  after  the  time  of  trial  had  so  been 
fixed  the  plaintiff  interposed  his  motion  for  the  change  of 
judge.  We  are  of  the  opinion  that  while,  in  ordinary  cases, 
a  party,  on  a  proper  showing,  has  a  right  to  such  change  of 
judge,  yet  that  a  motion  of  this  nature  should  be  made 
promptly  in  due  season,  and  certainly  not  for  the  sole  pur- 
pose of  causing  delay,  and  that  in  this  case  the  plaintiff,  by 
omitting  to  file  his  affidavit  until  after  he  had  consented  to 
have  the  trial  of  the  cause  fixed  for  a  day  certain,  and  the 
cause  had  been  called  on  that  day,  thereby  waived  his  rights 
under  the  statute  which  provides  for  a  change  of  judge, 
unless  the  party  so  applying  has  just  learned  that  facts  exist 


190  HELLMAN  v.  WRIGHT.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

from  which  he  believes  that  a  judge  may  be  prejudiced 
against  him,  which  facts  should  be  alleged  in  the  affidavit. 

The  second  error  alleged  cannot  be  considered  by  this 
court,  as  it  was  neither  assigned  nor  argued  as  error  upon 
the  motion  for  a  new  trial  in  the  court  below. 

The  decision  of  the  district  court  is  affirmed. 


HELLMAN  &  CO.  v.  WRIGHT  &  CO. 

PRACTICE. — Under  the  provisions  of  the  code  of  procedure  of  the  terri- 
tory of  Wyoming  all  objections,  except  those  for  incompetency  and 
irrelevancy,  must  be  raised  by  motion  before  the  commencement  of 
the  trial. 

IDEM. — Objections,  however,  for  the  two  reasons  mentioned,  should  be 
made  on  the  trial,  and  the  fact  that  the  court  has  previously  re- 
fused to  suppress  such  depositions  on  motion  is  no  bar  to  the 
question  being  again  raised  as  to  their  incompetency  and  irrevelancy. 

IDEM. — Where  the  plaintiff  had  introduced  his  evidence  and  had  rested, 
but  subsequently  offered  the  statutes  of  Nebraska  in  evidence :  Held, 
that  the  admission  of  the  same,  or  of  other  testimony,  was  entirely 
at  the  discretion  of  the  court,  and  that  the  refusal  to  admit  further 
evidence  at  that  time  was  no  error. 

ERROR  to  the  First  District  Court  for  Lararnie  County. 

A  full  statement  of  this  case  is  contained  in  the  opinion  of 
the  chief  justice. 

D.  MeLaughlin,  for  plaintiff  in  error,  cites :  Code  of  Wy- 
oming, 389 ;  4  Abb.  N.  Y.   Dig.  93  ;  Peel  v.  Elliot,  16  How. 
483  ;  Dolfusv.  French,  5  Hill,  493  ;  Powell  v.  Tuttle,  10  Paige, 
523 ;  Mitchell  v.  Allen,  12  Wend.  290  ;  38  N.  Y.  355,  361, 
378,  385  ;  1  Greenleaf  on  Evidence,  381,  50;  sees.  Ill,  112 
and  117;  2   Id.  484;  1  Parsons,  175  ;  43  Barb.  435  ;  51  Id. 
616;  Pars,  on  Part  72-88,  120;  1  Phil.  Ev.  466;  Conklinv. 
Barton,  43  Barb.  435  ;  Stackie  on  Evidence,  76. 

E.  P.  Johnson,  for  defendant  in  error,  cites  :  1  Phil,  on  Ev. 
497 ;  1  Greenl.   177  ;  Parsons  on  Partnership,  194,  185 ;  2 


March,  1875.]        HELLMAN  v.  WRIGHT.  191 

Opinion  of  the  Court— Fisher,  C.  J. 

Washington  C.  C.  Repts.  388 ;  10  Johnson,  66 ;  7  Wendell, 
216 ;  6  Pick.  464 ;  5  Id.  414  ;  9  Gushing,  255,  323  ;  9  Met- 
calf,  544 ;  2  Greenleaf,  482 ;  1  Smith's  Lead.  Gas.  1190 ;  2 
Nash,  1045. 

By  the  Court,  FISHER,  C.  J. :  On  the  tenth  of  Decem- 
ber, A.  D.  1872,  the  firm  of  Wright  &  Co.,  who  were  en- 
gaged in  a  trading  business  in  the  city  of  Omaha,  in  the 
state  of  Nebraska,  made  their  promissory  note,  payable 
to  their  own  order  at  the  First  National  Bank  of  Omaha, 
for  one  hundred  and  twenty-seven  dollars  and  thirty  cents, 
in  eighteen  days  from  the  date  thereof.  When  said  note 
became  due  it  was  not  paid.  The  plaintiffs  in  error,  who 
were  the  plaintiffs  below,  brought  a  suit  against  Wright 
&  Co.  in  the  district  court  of  the  first  judicial  district  of 
Wyoming  territory,  to  the  July  term,  A.  D.  1873,  and  at  the 
same  time  issued  an  attachment  and  attached  a  large  lot  of 
goods  which  were  in  a  store  kept  in  the  city  of  Cheyenne  by 
one  George  L.  Wright,  whom  the  plaintiffs  alleged  was  a 
member  of  the  firm  of  Wright  &  Co. 

On  the  trial  of  the  case  in  the  district  court,  evidence  was 
produced  on  the  part  of  the  plaintiffs  going  to  establish  the 
fact  as  alleged,  and  on  the  part  of  defendant  denying  the 
allegation.  This  question  was  submitted  by  the  court  (Jus- 
tice Carey  presiding)  to  the  jury,  to  find  whether  or  not 
George  L.  Wright  was  a  member  of  the  firm  of  Wright  & 
Co.  at  the  time  the  note  was  given,  and  find  accordingly. 
The  jury  found  for  defendants,  and  in  their  verdict  embodied 
a  special  finding  that  George  L.  Wright  was  not  a  member 
of  the  firm  of  Wright  &  Co.  A  motion  was  filed  for  a  new 
trial,  and  a  long  list  of  exceptions  filed,  all  of  which,  after 
argument,  were  overruled,  and  a  new  trial  refused.  After 
this  a  motion  was  entered  fora  new  trial  upon  the  ground  of 
newly  discovered  evidence.  Previously  to  this,  however, 
the  defendants  had  filed  a  motion  to  suppress  portions  of 
certain  depositions  taken  by  the  plaintiffs  to  be  read  in  evi- 
dence on  the  trial,  on  the  grounds  of  incompetency  and 


192  HJU.LMAK  v.  WRIGHT.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

irrelevancy,  which  motion  after  argument  was  overruled  by 
C.  J.  Fisher,  who  was  at  the  time  presiding.  The  last  mo- 
tion filed  by  plaintiffs  was  also  overruled.  The  plaintiffs 
then  brought  the  case  to  this  court,  assigning  a  long  list  of 
exceptions,  the  first  of  which  "was  not  insisted  upon ;  the 
second  was :  "  Tbnt  the  court  erred  in  sustaining  the  objec- 
tions made  by  defendants  to  a  part  of  the  depositions  of 
Jacob  Solomon,  on  the  ground  of  incompetency  and  irrele- 
vancy, when  the  same  was  offered  in  evidence  by  the  plaintiff, 
and  that  it  was  error  in  the  court  to  entertain  such  objec- 
tions, they  having  been  previously  passed  upon  by  the  court 
at  the  instance  of  the  defendants." 

The  list  of  errors  assigned  from  the  second  to  the  eleventh 
inclusive^  are  of  the  same  nature,  and  are  to  be  considered 
by  the  same  rules.  The  next  error  complained  of  is,  "  That 
the  court  erred  in  not  permitting  the  plaintiffs  to  give  in  evi- 
dence the  laws  of  the  state  of  Nebraska  to  prove  the  rate  of 
interest  in  that  state."  The  next  errors  complained  of, 
including  instructions  12, 13, 14,  15,  16,  17, 18  and  19,  asked 
for  by  plaintiffs,  not  having  been  given  to  the  jury  as  re- 
quested by  plaintiffs. 

The  plaintiffs  further  assign  as  error  the  fact  that  the  court 
erred  "  In  overruling  their  motion  requiring  all  instructions 
requested  by  defendants  to  be  given  or  refused  by  the  court 
before  the  commencement  of  the  argument."  The  other 
errors  complained  of  were  certain  instructions  given  to  the 
jury  by  the  court  by  which  the  jury  was  misled.  And  also 
that  the  verdict  is  not  in  accordance  with  the  law  and  the 
evidence,  and  that  a  new  trial  was  not  granted. 

The  record  in  this  case  shows  that  a  motion  was  made  by 
the  counsel  for  defendants  in  the  court  below,  previous  to 
the  commencement  of  the  trial,  to  suppress  parts  of  certain 
depositions  taken  by  plaintiffs  to  be  read  on  the  trial  of  the 
case,  on  account  of  incompetency  and  irrelevancy,  and  which 
motion  was  very  properly  overruled  because  the  court  could 
not  sustain  such  a  motion  at  that  time,  as  the  question  of 
their  competency  and  relevancy  could  only  be  determined 


March,  1875.]        HELLMAK  v.  WRIGHT.  193 

Opinion  of  the  Court — Fisher,  C.  J. 

by  the  other  evidence  as  it  might  arise  in  the  progress  of 
the  trial ;  but  the  refusal  of  the  court  to  suppress  said  de- 
positions at  that  time  did  not  in  itself  determine  that  the 
motion  should  not  be  again  properly  made  and  sustained. 
But  even  if  such  had  been  the  result  of  the  ruling  on  the 
plaintiff's  motion,  we  can  see  no  good  reason  why  the  court 
could  not  modify  or  even  reverse  its  ruling,  and  that,  too, 
notwithstanding  there  had  been  a  change  of  judges.  But 
upon  an  examination  of  the  parts  of  the  depositions  refused, 
we  are  fully  of  the  opinion  that  the  action  of  the  court  in 
sustaining  the  motion  at  the  time  was  eminently  proper. 
All  the  portions  of  the  depositions  bearing  upon  the  ques- 
tion, as  to  whether  George  L.  Wright  was  a  member  of  the 
firm  of  Wright  &  Co.,  which  could  be  given  under  any 
known  rules  of  evidence  was  admitted,  and  the  only  part 
denied  was  the  statements  of  the  other  members,  or  alleged 
members  of  the  firm,  and  of  other  persons  not  in  any  way 
connected  with  it,  and  whose  statements  could  not  in  any 
way  bind  George  L.  Wright.  Hence,  we  find  no  error  un- 
der this  exception,  and  the  nine  following  ones  being  of  a 
precisely  similar  character  must  be  disposed  of  in  the  same 
manner. 

The  next  question  requiring  our  attention  is  contained  in 
the  twelfth  exception  assigned,  viz  :  That  the  court  erred  in 
excluding  the  laws  of  Nebraska  when  offered  in  evidence  by 
the  plaintiffs  to  prove  the  rate  of  interest  in  that  state.  The 
record  shows  the  offer  was  not  made  until  the  testimony  of 
the  plaintiffs  had  been  heard  and  they  had  closed,  and  that 
on  the  part  of  the  defense  had  also  closed ;  when  no  evidence 
except  in  rebuttal  could  be  given,  except  by  consent  of  the 
parties  or  by  the  discretion  of  the  court,  and  therefore  there 
is  no  error  for  this  court  to  correct.  The  balance  of  the 
errors  complained  of  consists  of  complaints  touching  instruc- 
tions given  and  others  refused,  but  as  we  fail  to  find  in 
those  given  anything  which  could  by  any  possibility  mislead 
the  jury,  we  find  nothing  to  correct.  And  as  to  instructions 
refused,  reviewing  courts  will  seldom  interfere  with  a  mat- 
13 


WAGNER  v.  HARRIS.  [Sup.  Ct. 

Argument  for  Appellees. 

ter  which  is  so  entirely  within  the  discretion  of  the  court. 
We,  therefore,  after  a  full  and  careful  examination  of  the 
whole  record,  have  arrived  at  the  conclusion  that  substan- 
tial justice  has  been  done,  so  far,  at  least,  as  the  rulings  of 
the  court  below  are  concerned,  that  we  think  we  ought  not 
to  interfere. 

The  judgment  is  therefore  affirmed. 


WAGNER  AND  DUNBAR,  APPELLANTS,  v.  HARRIS 

ET  AL. 

LEGISLATIVE  POWERS — MUNICIPAL  CORPORATIONS. — The  legislative 
assemblies  of  Wyoming  and  other  territories,  although  not  in  pos- 
session of  sovereign  powers,  have  authority  under  various  acts  of 
congress  to  create  municipal  corporations,  and  to  grant  charters  to 
the  same. 

APPEAL  from  the  Second  District  Court,  Albany  County. 

A  sufficient  statement  of  the  case  is  contained  in  the  opin- 
ion of  the  Court. 

J.  W.  Kingman,  for  appellants,  contended  that  the  legisla- 
tive assembly  of  a  territory  not  possessing  sovereign  powers 
could  not  create  municipal  corporations,  nor  grant  them  the 
authority  to  pass  and  enforce  by-laws  and  ordinances,  levy 
taxes,  and  to  perform  other  duties  incumbent  upon  such  cor- 
porations. 

E.  P.  Johnson  and  M.  O.  Brown,  for  appellees,  presented 
the  following  arguments  and  citations : 

This  case  comes  up  from  the  second  district  on  appeal. 
Plaintiffs  in  appeal  were  plaintiffs  below.  It  is  a  case  in 
equity,  being  a  bill  for  an  injunction  to  restrain  defendants 
from  exercising  their  functions  as  trustees  of  the  town  of 
Laramie  City  under  the  charter  of  said  city,  passed  by  the 
third  legislative  assembly  of  the  territory.  The  basis  of 


March,  1875.]          WAGNER  v.  HAKRIS.  195 

Argument  for  Appellees. 

the  complaint  is  the  alleged  illegality  of  the  legislative 
action  in  granting  the  charter,  by  reason  of  its  being  the 
exercise  of  power  not  possessed  by  the  legislature  under  the 
laws  of  congress  and  an  act  in  violation  of  those  laws. 

That  the  action  of  the  defendants,  under  the  charter  as 
trustees  of  said  city,  in  levying  taxes,  making  ordinances, 
creating  a  police,  etc.,  are  unauthorized  by  law  and  are 
injurious  and  oppressive  to  the  people.  On  that  account 
and  for  that  reason  it  is  submitted  by  defendants : 

I.  That  the  bill  does  not  seek  to  have  any  specific  or  par- 
ticular act  or  threatened  act  enjoined  as  one  calculated  to 
work  irreparable  injury  or  cast  a  cloud  upon  real  estate,  or 
as  coming  under  any  special  head  of  equitable  jurisdiction, 
but  simply  seeks  to  stop  the  whole   machinery  of  the  mu- 
nicipal government  of  Laramie  City,  for  the  reason  that  the 
legislature  exceeded  its  power  in  calling  it  into  existence. 
And  the  acts  complained  of  in  the  bill  are  set  out  to  invoke 
the  protection  of  a  court  of  equity  in  favor  of  complainants 
and  all  those  in  whose  behalf  they  appear,  on  the  theory 
that  they  are  injurious  and  should  be  restrained  on  account 
of  their  illegality,  and  their  illegality  is  based  on  the  alleged 
illegal  action  of  the  legislature.     Now,  if  it  be  true  that  the 
act  of  the  legislature  was  wholly  void  and  that  all  the  pre- 
tentions,  actions,  and  doings  of  the  defendants  as  trustees 
are  absolutely   without  authority  and  void,  then  it  is  only 
necessary  for  that  allegation  to  appear  on  the  face  of  the 
bill  to  make  it  necessary  for  the  court  to  refuse  the  relief 
and  dismiss  the  bill  for  want  of  equity,  as   there  is  an  ade- 
quate remedy  at  law.     If  what  is  stated  is  true,  defendants 
and  all  their  agents  are  simply  trespassers  in  all  matters 
complained  of,  and  remedy  at   law  is  complete  :  High,  on 
Injunc.  sec.   354;   Blake  v.  Brooklin,  26  Barber,  101  ;  Hill, 
on  Injunc.  sec.  23,  p.  458  et  seq. ;  1  Ohio  St.  59 ;  Mechanics 
v.  Debo?.t,  25  N.  Y.  312 ;  3  Ohio  St.  1 ;  2  Dill,  on  Mun.  Corp. 
sees.  727,  770. 

II.  It  is,  however,  claimed   that  the  legislature,  in  grant- 
ing the  charter,  violated  the  act  of  congress  approved  March 


196  WAGNER  v.  HARRIS.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

2,  1867,  as  also  the  organic  act  of  the  territory.  The  act  of 
March  2,  1867,  in  express  terms  refers  only  to  private  cor- 
porations and  special  privileges  to  associations  of  citizens 
for  any  purpose,  and  has  no  reference  to  municipal  corpo- 
rations :  14  Stats,  at  Large,  426.  If  there  was  any  doubt 
on  that  point  it  would  be  dispelled  by  the  amendment  to 
that  act :  17  Stats,  at  Large,  390.  It  is  a  sufficient  answer 
to  the  position  that  the  act  of  the  legislature  is  in  conflict 
with  the  organic  act,  to  refer  to  Dill,  on  Mun.  Corp.  sec. 
18,  and  cases  there  cited. 

III.  Should  it  be  claimed  or  argued  that  the  officers  of 
the  corporation  have  acted  illegally,  or  failed  to  act  in  con- 
formity with  the  authority  conferred  by  a  valid  charter 
(although  it  is  not  conceded  that  such  a  question  arises  in 
this  case),  it  may  be  answered  that  there  is  a  remedy  by 
mandamus  or  certiorari,  or  other  action  at  law,  to  compel  a 
compliance  with  the  provisions  of  the  charter  and  ordinances  : 
1  Dill.  Mun.  Corp.  sees.  665,  751,  752,  739  and  741. 

By  Court,  CAREY,  J.  This  was  a  bill  of  complaint  filed 
in  the  district  court,  by  complainants,  appellants  in  this 
court,  praying  that  William  Harris,  J.  H.  Finfrod,  R.  Gal- 
braith,  James  Vine  and  T.  J.  Webster  (trustees  of  Laramie 
city),  defendants,  their  agents,  attorneys,  solicitors  and 
officers  might  be  perpetually  enjoined  from  proceeding  fur- 
ther to  act  as  a  corporation  (under  an  act  of  the  third  legis- 
lative assembly  of  Wyoming,  approved  December  12,  1873, 
entitled  "an  act  to  incorporate  Laramie  city"),  to  make 
laws,  by-laws  or  ordinances,  or  to  affix  penalties  thereto,  or 
to  assess  taxes,  or  to  attempt  to  collect  the  same,  or  to  con- 
tract debts,  or  issue  warrants  or  promises  to  pay,  or  collect 
licenses,  or  issue  warrants  in  civil  cases,  and  imprison 
parties  for  non-payment  of  judgments  therein,  and  especially 
from  attempting  to  collect  the  tax  of  ten  mills  on  the  dollar 
assessed  on  the  personal  property  of  the  town  of  Laramie 
for  the  year  1874-1875.  Though  various  questions  were 
incidentally  presented  in  the  court  below,  it  appears  from 


March,  1875.]          WAGNER  v.  HARRIS.  197 

Opinion  of  the  Court — Carey,  J. 

the  bill  of  complaint  and  the  decision  filed,  that  the  only 
questions  relied  on  and  considered  by  the  court  were  those 
that  went  to  the  legality  of  the  Laramie  city  government, 
under  the  law  incorporating  said  city:  Laws  1873,  201 
et  seq.  We  will  consider  these  questions  as  follows  : 

1.  Is    the  establishment    of    a  municipal    corporation    a 
rightful  subject  of  legislation  ? 

2.  Is  the  authority  to  establish  a  municipal  corporation 
vested  in  the  territorial  legislature?     If  so,  is  the  statute 
incorporating  the  city  of    Laramie  consistent  with  the  or- 
ganic act  of  the  territory,  the   constitution  of  the  United 
States,  and  the  laws  of  the  United  States  applicable  to  the 
territory  ? 

Upon  the  first  of  these  questions  there  can  be  no  doubt. 
The  creation  of  municipal  corporations  has  been  recognized 
as  a  rightful  subject  of  legislation  by  the  supreme  court  of 
the  United  States,  and  we  believe  by  the  highest  courts  of 
almost  every  state  of  the  union.  Probably  there  is  not  a 
state  but  what  the  legislature  of  which  has  from  time  to 
time  exercised  such  powers  undisputed.  In  some  of  the 
states  these  corporations  are  created  under  general  laws, 
while  in  other  states  they  are  created  by  special  charters. 
In  England,  since  the  passage  of  the  municipal  corporation 
act  in  1835,  municipal  corporations  have  been  the  creatures 
of  legislative  enactments ;  and  in  this  country,  says  Judge 
Dillon,  the  proposition  which  lies  at  the  very  foundation  of 
the  laws  of  corporations,  is  that  all  corporations,  public 
and  private,  exist  and  can  exist  only  by  express  legislative 
enactment,  creating  or  authorizing  the  creation  of  the  cor- 
porate body:  Dillon  on  Municipal  Corporations,  sec.  17 
et  seq. 

We  now  come  to  the  consideration  of  the  question 
whether  the  authority  to  create  municipal  corporations  is 
vested  in  the  territorial  legislature.  It  is  no  longer  doubted 
that  over  all  territory  acquired  by  treaty  or  conquest  con- 
gress has  exclusive  and  universal  power,  and  their  legisla- 
tion is  subject  to  no  control,  save  treaty  stipulations  and 


198  WAGNER  v.  HARRIS.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

personal  rights  and  rights  of  citizenship  guaranteed  by  the 
constitution.  Such  territory  is  not  within  the  jurisdiction 
of  any  state,  and  is  necessarily  under  the  jurisdiction  of  the 
United  States,  otherwise  it  would  be  without  any  govern- 
ment at  all :  Amer.  Ins.  Co.  v.  Carter,  S.  C.,  1  Pet.  511  ; 
Dred  Scott,  19  How.  U.  S.  393 ;  1  Kent,  384  ;  Story's  Const. 
1322  et  seq. 

Congress  possessing  the  power  of  sovereignty  may  enact 
whatever  form  of  government  in  the  territories  they  deem 
best.  It  is  wholly  in  their  discretion  what  powers — legisla- 
tive, judicial  and  executive — shall  be  conferred  upon  a  ter- 
ritorial government.  This  discretion  of  congress  has  been 
exercised  with  wisdom  and  liberality,  and  they  have  from 
time  to  time  conferred  more  extended  powers  to  the  people 
of  the  territories.  In  the  organization  of  the  territory  north- 
west of  the  Ohio  river,  the  legislative  power  was  vested 
temporarily  in  the  governor  and  judges  of  said  territory. 
In  the  organization  of  the  territory  of  Orleans,  which  be- 
came the  state  of  Louisiana,  the  legislative  power  was  vested 
in  the  governor  and  a  council,  appointed  by  the  president. 
Until  the  organization  of  the  territory  of  Wisconsin  various 
modes  were  adopted  for  the  several  territories  created.  The 
Wisconsin  organic  act  appears  to  have  been  the  matured 
system  for  the  government  of  territories,  as  all  territorial 
organic  acts  enacted  since  are  but  copies  of  the  Wisconsin 
act.  The  whole  legislation  of  congress  in  reference  to  the 
territories  shows  that  the  policy  and  theory  of  congress  in 
the  organization  of  territories'  have  been  to  leave  all  the 
powers  of  self-government  with  the  people  of  such  territo- 
ries, consistent  with  the  supreme  and  supervisory  power  of 
the  general  government,  and  to  admit  such  territories  as 
soon  as  they  possessed  the  requisite  constitutional  require- 
ments as  states,  on  an  equal  footing  with  the  original  states : 
Cooley's  Cons.  Lim.  31  ;  Clinton  v.  Englebrecht,  13  Wallace, 
U.  S.  R.  434. 

After  a  careful  examination,  \ve  find  that  the  restrictions 
placed  upon  the  legislative  power  of  this  territory  are  as 


March,  1875.]          WAGNER  v.  HARRIS.  199 

Opinion  of  the  Court — Carey,  J. 

few  as  those  placed  upon  the  legislative  powers  of  most  of 
the  states  of  the  union.  The  sixth  section  of  the  organic 
act  of  the  territory  provides,  "That  the  legislative  power 
of  the  territory  shall  extend  to  all  rightful  subjects  of  legis- 
lation consistent  with  the  constitution  of  the  United  States 
and  the  provisions  of  this  organic  act ;  but  no  law  shall  be 
passed  interfering  with  the  primary  disposal  of  the  soil ;  no 
tax  shall  be  imposed  upon  the  property  of  the  United  States, 
nor  shall  lands  or  other  property  of  non-residents  be  taxed 
higher  than  the  lands  or  other  property  of  residents,  nor 
shall  any  law  be  passed  impairing  the  rights  of  private  prop- 
erty, nor  shall  any  unequal  discrimination  be  made  in  taxing 
different  kinds  of  property,  but  all  property  shall  be  taxed 
in  proportion  to  its  value." 

Congress  has  from  time  to  time  enacted  certain  general 
laws  in  reference  to  the  territories,  among  which  are  laws  in 
reference  to  slavery  and  polygamy  in  the  territories,  and  a 
statute  providing  that  the  legislative  assemblies  of  the  sev- 
eral territories  of  the  United  States  shall  not  grant  private 
charters  or  special  privileges,  but  that  they  may  by  general 
incorporation  acts  permit  persons  to  associate  themselves 
together  as  bodies  corporate,  for  mining,  manufacturing, 
and  other  industrial  pursuits.  We  are  unable  to  find  any 
prohibition  in  the  organic  act,  or  other  acts  of  congress,  or 
in  the  constitution  of  the  United  States,  upon  the  legisla- 
tive assembly  of  this  territory  in  creating  municipal  corpo- 
rations :  14  Statutes  at  Large,  426.  By  section  fifteen  of  the 
organic  act,  these  laws  are  extended  to  this  territory.  We 
are  referred  to  the  act  of  congress  prohibiting  the  legisla- 
ture from  granting  private  charters,  etc.,  but  this  act  does 
not  bear  upon  the  question  under  consideration,  as  the  cor- 
poration of  Laramie  city  is  a  public  corporation. 

Again,  it  is  solemnly  argued  that  a  territory  possessing  no 
sovereign  power  cannot  create  municipal  corporations ;  that 
the  board  of  trustees  of  said  Laramie  city  are  authorized  to 
exercise  legislative  powers  which  are  by  the  organic  act 
vested  in  the  legislative  assembly  and  governor  of  the  terri- 


200  WAGNER  v.  HARRIS.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

tory.  While  the  making  of  ordinances  and  by-laws  by  the 
trustees  of  said  city  may  be  the  exercise  of  a  certain  kind 
of  legislative  power,  we  do  not  consider  it  the  exercise  of 
any  part  of  the  legislative  power  vested  in  the  legislative 
assembly  and  governor  of  the  territory ;  nor  do  we  consider 
that  it  requires  sovereign  power  to  create  a  public  corpo- 
ration, any  more  than  a  private  one ;  and  that  a  territorial 
legislature  did  possess  the  power  to  create  private  corpora- 
tions before  the  passage  of  the  act  of  March  2,  1867, 
(14  Statutes  at  Large,  426),  is  recognized  by  said  act,  and 
was  expressly  decided  by  the  supreme  court  of  the  United 
States  in  the  case  of  Vincennes  University  v.  Indiana,  14 
Howe,  268.  The  same  act  of  March  2,  1867,  does  not 
prevent  the  existence  of  private  corporations  in  the  territo- 
ries, but  it  provides  that  they  shall  be  organized  under  gen- 
eral laws  and  not  created  by  private  charters.  We  do  not 
see  how  the  question  of  sovereignty  can  arise  in  the  deter- 
mining of  the  questions  presented.  The  powers  of  the  legis- 
lature are  such  as  are  conferred  by  congress.  Congress  has 
conferred  upon  the  territorial  legislature  the  power  to  legis- 
late on  all  rightful  subjects  of  legislation,  with  certain  restric- 
tions and  exceptions,  and  the  legislative  power  to  create 
municipal  corporations  does  not  fall  within  the  restrictions 
and  exceptions. 

We  cannot  see  why  the  same  rules  in  determining  what 
are  rightful  subjects  of  legislation  should  not  apply  in  the 
territories  that  apply  in  the  states.  In  a  state  a  legislature 
can  legislate  upon  all"  rightful  subjects  of  legislation  consis- 
tent with  the  constitution  of  such  state  and  the  constitution 
of  the  United  States,  and  in  a  territory  of  the  organic  and 
other  acts  of  congress.  By  an  examination  of  the  consti- 
tutions of  a  number  of  the  states  we  find  substantially  the 
same  provisions  in  reference  to  the  legislative  powers  of 
such  states  as  are  contained  in  the  organic  act  of  this 
territory  in  reference  to  the  legislative  powers  of  such  ter- 
ritory. The  powers  of  such  states  to  create  municipal  cor- 
porations, with  officers  authorized  to  make  by-laws  and  or- 


March,  1875.]  WAGNER  v.  HARRIS.  20l 

Opinion  of  the  Court — Carey,  J. 

dinances,  has  not  been  doubted ;  nor  has  it  been  held  that 
such  officers  exercise  any  portion  of  the  legislative  power 
vested  in  such  state  legislatures :  Dill,  on  Mun.  Corp.  sec. 
18;  2  Kansas,  445;  2  Id.  454;  1  Colorado,  323. 

Again,  it  is  within  the  power  of  congress  to  annul  any  ter- 
ritorial law.  While  congress  has  time  and  again  exercised 
this  power,  we  have  been  unable  to  find  an  instance  where 
congress  has  annulled  a  law  of  a  territory  creating  a  munici- 
pal corporation.  Congress  has  by  various  acts  recognized 
municipal  corporations  in  the  territories,  and  by  the  passage 
of  a  recent  act  granting  certain  lands  to  the  city  of  Chey- 
enne for  water  purposes,  recognized  the  corporate  authori- 
ties of  said  city.  It  is,  therefore,  no  unreasonable  inference 
that  the  power  of  territorial  legislatures  to  create  municipal 
corporation's  is  recognized  and  approved  by  congress. 

The  remaining  question  which  we  are  called  upon  to  con- 
sider is,  whether  the  charter  in  question  is  consistent  with 
the  provisions  of  the  organic  act.  While  the  charter  is  am- 
biguous and  uncertain  in  many  respects,  most  of  its  pro- 
visions are  consistent  with  the  organic  act ;  but  we  do  not 
feel  called  upon  under  the  record  to  construe  its  various 
provisions.  The  sixteenth  subdivision  of  section  18  of  said 
charter  provides  that  the  by-laws,  ordinances  and  regula- 
tions of  said  city  shall  not  be  repugnant  to  the  laws  or  or- 
ganic act  of  the  territory,  and  if  this  provision  is  violated  a 
court  of  equity  or  law  will  furnish  relief  or  a  remedy  when 
the  matter  is  properly  presented  to  the  court. 

Thus,  that  the  passage  of  the  charter  was  unwise  and  im- 
politic we  are  not  called  upon  to  decide.  The  courts  will 
not  declare  a  law  or  any  portion  of  a  law  unconstitutional 
unless  its  opposition  to  the  fundamental  law  is  clear  and 
plain.  To  justify  a  court  in  pronouncing  an  act  of  the  leg- 
islature to  be  unconstitutional  the  incompatibility  must  not 
be  speculative,  argumentative,  or  to  be  found  only  in  hypo- 
thetical cases  or  in  supposed  consequences  ;  it  must  be  clear, 
decided  and  inevitable,  such  as  presents  a  contradiction  at 
once  'to  the  mind,  without  straining  either  by  forced  mean- 


202  BROWN  v.  ILGES.  [Sup.  Ct. 


Statement  of  Facts. 


ings  or  too  remote  consequences :  7  Pet.  633 ;  2  McLane, 
195. 

For  the  foregoing  reasons  the  decree  of  the  district  court 
is  affirmed. 


BROWN  v.  ILGES. 

JURISDICTION  OF  UNITED  STATES  COURTS. — Military  reservations  within 
the  territory  of  Wyoming  are  solely  under  the  jurisdiction  of  the 
United  States. 

IDEM. — Where  stock  was  roaming  over  a  reservation,  contrary  to  the 
provisions  of  the  general  orders  of  the  commanding  officer,  and 
such  stock  was  seized  by  a  subordinate  officer  of  the  United  States, 
in  accordance  with  such  general  orders :  Held,  1.  That  such  com- 
manding officer  had  the  authority  to  make  and  enforce  the  general 
orders;  2.  That  the  owner  of  such  stock  could  not  maintain  a  civil 
action  for  damages  against  the  subordinate  officer  who  executed 
the  general  orders. 

IDEM. — A  party  will  not  be  heard  to  allege  error  which,  if  it  exists  at 
all,  is  in  his  own  favor. 

POSITIVE  INSTRUCTIONS. —Where  the  material  facts  upon  the  trial  of 
a  cause  are  undisputed,  the  court  not  only  may  but  should  give  pos- 
itive instructions. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

This  case  was  originally  commenced  in  replevin  before  a 
justice  of  the  peace  at  Fort  Laramie,  taken  from  him,  by 
change  of  venue,  to  a  justice  of  the  peace  at  Cheyenne,  who 
gave  judgment  for  plaintiff.  The  defendant  appealed  to  the 
district  court,  where  judgment  was  rendered  for  the  defend- 
ant, and  the  case  came  up  from  that  court.  The  defendant 
was  an  officer  in  the  United  States  army  stationed  at  the 
fort.  There  was  a  dispute  as  to  the  ownership  of  the  prop- 
erty replevied,  but  it  appeared  that  the  plaintiff  resided 
near  the  military  reservation,  and  that  the  hogs  in  question 
were  in  the  habit  of  running  on  the  reservation.  That  the 
same  was  contrary  to  "general  orders,"  and  the  plaintiff  was 
notified  to  keep  them  from  the  fort.  Upon  his  failure  so  to 


March,  1875.]  BBOWN  v.  ILGES.  203 

Argument  for  .Defendant  in  Error. 

do  the  hogs  were  taken  up  under  a  general  order  from  the 
post-commander,  and  defendant  then,  as  officer  of  the  day, 
under  the  direction  of  the  post  commander,  refused  to  de- 
liver the  property  to  the  plaintiff,  and  did  not  do  so,  nor 
permit  the  officer  having  the  writ  to  take  the  property  until 
so  directed  by  the  post-commander.  On  the  trial  the  court 
instructed  the  jury  to  find  for  the  defendant. 

W.  H.  Miller  and  Thomas  J.  Street,  for  plaintiff  in  error, 
contended  that  the  district  court  erred  in  charging  the  jury 
to  find  for  the  defendant,  and  that  the  court,  in  giving  an 
alleged  state  of  facts  to  the  jury,  had  erred  in  so  doing  and 
had  assumed  the  functions  of  the  jury. 

E.  P.  Johnson,  for  defendants  in  error. 

I.  Of  the  instructions.      Plaintiff  does  not  attempt  to 
maintain  that  the  instructions  are  erroneous  so  far  as  the 
statement  of  the  law  is  concerned,  but  only  because  the 
facts  are  assumed,  as  is  alleged,  and  by  the  positive  instruc- 
tion the  province  of  the  jury  was  invaded.     It  cannot  be 
said  that  the  court  acted  upon  assumption,  merely  because 
the  facts  that  were  decisive  of  the  controversy  were  undis- 
puted; so  there  was  nothing  for  the  jury  to  act  upon,  their 
province  being  simply  to  weigh  testimony.     Where  the  facts 
are  undisputed,  the   court  not  only  may  but  should  give 
positive  instructions  :  Hill.  New  Trials,  221-2-3,  225  ;  Pratt 
v.  Hull,  13  John.  334 ;  Stuard  v.  Simpson,  1  Wend.  378 ; 
Rich  v.  Rich,  6  Wend.  663. 

II.  It  is  complained  that  the  verdict  is  not  in  the  form 
required  by  law,  in  answer  to  which  it  is  said :   1.   That 
special  findings  as  to  the  right  of  property  or  right  of  pos- 
session is   required  only  when  one  or  the  other,  or  both, 
are  claimed  by  defendant.     In  this  case  defendant  claimed 
neither ;  so  that  in  the  event  of  a  finding  for  the  defendant 
no  damages  other  than  normal  could  be  given.     The  reason 
for  special  findings,  therefore,  fails  ;  2.  If,  under  the  evi- 


204  BROWN  v.  iLGfis.  [Sup.  Ot. 

Opinion  of  the  Court — Thomas,  J. 

dence  and  the  law,  defendant  was  entitled  to  recover,  he 
was  entitled  to  nominal  damages  at  least,  and  if  the  jury 
failed  to  make  special  findings  that  entitled  him  to  more,  it 
was  an  error  in  plaintiff's  favor,  and  of  which  the  defendant 
alone  could  complain.  A  party  will  not  be  heard  to  allege 
error  which,  if  it  exists  at  all,  is  in  his  favor  and  does  not 
prejudice  him :  Nash  PI.  &  Pr.  689 ;  Powell  on  App.  Pr. 
189.  But  the  above  assignment  of  error  cannot  avail,  as  it 
was  not  presented  on  motion  for  a  new  trial.  The  rule  on 
that  subject  in  this  court  is  well  settled.  The  motion  for  a 
new  trial  was  heard  on  the  ground  that  the  verdict  was  con- 
trary to  law,  but  no  objection  was  taken  as  to  its  form. 

By  the  Court,  THOMAS,  J.  The  chief  error  alleged  by 
the  plaintiff,  is  the  instruction  given  to  the  jury  by  the 
judge  of  the  district  court,  to  the  effect  that  it  was  not 
necessary  for  them  to  pass  upon  all  the  points  raised  by 
the  defendant  in  the  case,  and  many  of  the  material  facts 
being  undisputed,  as  there  was  one  point  presented  which 
must  prove  fatal  to  the  plaintiff's  claim,  viz :  that  the 
property  in  question  had  been  taken  in  pursuance  of  the 
general  orders  of  the  officer  in  command  at  Fort  Lara- 
mie,  to  whom  the  defendant  was  subordinate ;  and  that 
in  a  United  States  post  and  upon  a  United  States  military 
reservation,  while  the  commanding  officer  had  no  jurisdic- 
tion over  the  persons  of  civilians,  yet  had  a  right  to  pro- 
mulgate and  enforce  strict  police  regulations,  and  that  if 
civilians  resided  upon  military  reservations,  and  allowed 
their  stock  to  roam  at  will  over  the  same,  they  must  do  it 
subject  to  such  regulations  and  at  their  own  risk.  And 
that  in  this  case  the  jury  must  find  for  the  defendant  and 
assess  damages  accordingly.  We  do  not  deem  it  necessary 
to  inquire  in  this. case  whether  the  general  order  issued  by 
the  commandant  at  Fort  Laramie  was  strictly  in  accordance 
Avith  the  general  law  of  the  land,  or  whether  he  had  any 
right  to  absolutely  confiscate  stock  roaming  at  large  about 
the  post.  There  can  be  no  question,  especially  as  these 


March,  1875.]  BROWN  v.  ILGES.  205 

Opinion  of  the  Court — Thomas,  J. 

reservations  are  solely  under  the  jurisdiction  of  the  United 
States,  that  an  officer  in  command  of  a  military  station,  has 
at  least,  an  equal  right  with  our  town  and  village  govern- 
ments to  impound  and  dispose,  by  settled  rules  and  regula- 
tions, of  animals  running  at  large,  and  at  least  to  retain  pos- 
session of  them  until  the  owner  of  them  enters  into  some 
satisfactory  and  binding  arrangement  or  agreement  in  refer- 
ence to  the  same.  In  this  case,  it  appears  that  the  swine  in 
question  were  not  confiscated,  but  were  detained  by  order  of 
Major  Blount,  commanding  at  Fort  Laramie.  We  are,  there- 
fore, unable  to  see  any  material  error  in  the  charge  of  said 
judge,  or  that  any  injustice  was  done  to  the  plaintiff  by  rea- 
son thereof,  especially  as  there  are  two  other  questions, 
which,  though  not  brought  up  on  the  argument  of  this  case, 
would  effectually  dispose  of  the  plaintiff's  claim  herein  : 

1.  That  the  defendant,  an  officer  of  the   United  States 
Army,  was  acting  in  strict  accordance  with  the  commands 
of  his  superior  officer,  upon  which  superior  officer  the  de- 
mand for  the  property  should  have  been  made,  instead  of 
upon  this  defendant. 

2.  That  the  justice  of  the  peace  before  which  the  suit  was 
commenced,  and  who  issued  the  writ  of  replevin  herein,  and 
the  one  before  whom  said  case  was  tried,  had  no  jurisdiction 
over  the  military  reservation  at  Fort  Laramie. 

The  judgment  of  the  district  court  is  affirmed. 


206  DUNN  v.  HEREFORD.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

DUNN  v.  HEREFORD. 

WORK,  LABOK  AND  SERVICES. — The  court  below  having  charged  the 
jury  that  if  defendant  hired  plaintiff  for  one  month  at  a  stipulated 
sum,  and  discharged  him  before  the  expiration  of  the  month  with- 
out sufficient  cause,  defendant  was  bound  to  pay  plaintiff  for  the 
full  month,  or  that  if  defendant  discharged  plaintiff  before  the 
time  agreed  upon  had  expired,  at  a  great  distance  from  home  and 
in  an  uninhabited  country,  that  defendant  was  bound  to  settle  with 
plaintiff  and  pay  him  the  amount  found  to  be  due:  Held,  that  such 
charge  was  not  erroneous. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

As  this  cause  was,  by  consent  of  parties,  submitted  upon 
the  brief  of  the  plaintiff  in  error,  and  it  contains  also  a 
statement  of  tlie  case,  it  is  given  here  in  full.  Upon  an 
examination  of  the  record,  however,  it  is  found  that  the 
testimony  was  contradictory  in  every  material  question. 

E.  P.  Johnson,  for  plaintiff  in  error. 

This  is  a  case  originally  commenced  by  defendant  in 
error  in  the  justices'  court  to  recover  $59.10,  balance  due 
him  from  plaintiff  in  error  on  account  for  services  performed 
by  him  as  night-herder.  The  defense  set  up,  was  that  a 
portion  of  the  indebtedness  claimed  arose  after  defendant 
was  discharged  from  plaintiff's  employ ;  and  that  defendant 
was  employed  as  night-herder,  and  that  he  willfully  aban- 
doned the  cattle  during  the  night  and  allowed  them  to  stray 
and  get  lost.  That  this  violation  of  his  contract  occurred 
on  several  occasions  on  each  of  which  the  train  was  delayed 
and  prevented  from  moving  to  the  damage  of  plaintiff  of 
one  hundred  dollars.  On  trial  of  the  cause  before  the  jus- 
tice, defendant  recovered  judgment  and  the  case  was  appealed 
to  the  district  court  of  Laramie  county,  and  comes  up  here 
from  that  court  for  review.  It  is  submitted  that  the  evi- 
dence discloses  the  following  facts  : 

Dunn  was  proprietor  of  a  freight  train  between  Cheyenne 
and  Fort  Laramie  and  the  Indian  agencies.  That  he  em- 
ployed Hereford  to  act  as  night-herder  at  fifty  dollars  per 


March,  1875.]          DUNN  v.  HEREFORD.  207 

Argument  for  Plaintiff  in  Error. 

month ;  that  as  such  night-herder  his  duties  were  to  take 
the  cattle,  keep  them  together  during  the  night,  and  have 
them  in  for  duty  in  the  morning ;  that  he  was  in  the  habit 
of  going  to  bed  nights,  causing  loss  of  the  cattle  and  delay 
in  the  movement  of  the  train  ;  that  he  was  caught  in  the  act 
on  the  second  trip  and  discharged,  and  one  Mansfield  em- 
ployed in  his  stead ;  that  he  stayed  with  the  train  from  the 
time  of  his  discharge  to  the  agency  and  back  to  Cheyenne, 
doing  no  work  for  Dunn,  but  charging  that  time,  fifteen 
days,  to  Dunn  in  the  account  sued  on ;  that  he  drew  his 
money  in  installments  as  he  needed  it,  and  when  he  left 
Cheyenne  on  the  second  trip  had  in  that  manner  received 
seven  dollars  more  than  was  due  him  ;  that  the  direct  loss 
shown  by  his  willful  neglect  of  duty  as  night-herder  amounted 
to  nearly  $300.  There  are  a  number  of  errors  assigned,  but 
those  chiefly  relate  to  one,  and  are :  1.  The  giving  of  the 
instructions  to  the  jury ;  2.  The  refusal  to  give  those  re- 
quested by  plaintiff  in  error ;  3.  The  overruling  the  motion 
for  a  new  trial. 

•  I.  The  instructions  to  the  jury  involve  three  propositions 
of  law,  each  of  which  are  erroneously  stated,  especially  as 
applied  to  this  case :  1.  The  first  proposition  is  that  Dunn, 
having  settled  with  Hereford  for  the  first  trip,  and  overpaid 
him  seven  dollars  without  having  interposed  a  claim  for 
damages  occasioned  by  Hereford's  neglect  on  that  trip, 
Dunn  could  not  afterward  set  the  claim  up  and  recover  it. 
Now,  it  is  urged  that  the  above  proposition  was  error :  First, 
because  it  informs  the  jury  that  a  fact  has  been  proven,  and 
assumes  that  Dunn  had  a  settlement  and  paid  for  prior  ser- 
vices with  a  knowledge  of  the  counter-claim  he  might  have 
set  up,  whereas  it  appears,  and  was  shown  by  Dunn's  testi- 
mony, that  he  did  not  find  out  that  Hereford  caused  the 
trouble  until  he  arrived  at  Running-water,  on  the  second 
trip ;  Second,  it  assumes  that  Dunn  and  Hereford  had  a  set- 
tlement, whereas  it  appears  that  Hereford  simply  drew  money 
when  he  wanted  it,  and  had  at  that  time  overdrawn  his  wages. 
Such  positive  instructions  are  erroneous,  where  there  is  evi- 


208  DUNN  v.  HEREFORD.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

dence  on  both  sides,  the  questions  of  fact  should  be  left  to 
the  jury :  3  Gra.  &  Wat.  on  New  Trials,  738-763  ;  19  Wend. 
402 ;  16  Id.  663 ;  but  strictly  and  chiefly  because  the  legal 
proposition  as  there  laid  down,  independent  of  the  facts,  is 
an  error.  Many  matters  of  difference  may  exist  between 
parties,  and  the  adjustment  of  any  of  them  does  not  estop 
either  party  from  asserting  their  rights  in  others,  unless 
those  others  are  included  and  settled.  The  instruction  was 
not  warranted,  on  the  ground  that  there  was  an  estoppel : 
Bigelow  on  Estoppel,  480 ;  nor  on  the  ground  of  an  account 
stated.  If  so,  it  was  only  prima  facie  not  a  conclusive  bar : 
3  Phil,  on  Ev.  430-1. 

2.  The  second  proposition  is  that  Dunn  could  not  dis- 
charge plaintiff  at  Running-water  without  paying  him  off. 
Acting  upon  that  instruction  the  jury  were  compelled  to  al- 
low Hereford  wages  for  fifteen  days,  during  which  time  he 
did  no  work  for  Dunn.     While  an  employee  may  recover 
sometimes  for  work  already  performed,  even  though  dis- 
charged for  cause,  yet  it  has  never  been  held  that  the  right 
of  action  for  wages  due  gave  him  also  the  privilege  of  con- 
sidering himself  in  his  master's  employ  until  the  claim  was 
paid.     According  to  the  law,  as  given  to  the  jury  in  that 
instruction,  Hereford  is  still  in  Dunn's  employ,  and  has  only 
to  insist  on  his  pay  as  an  employee  to  the  present  moment 
to  recover.     The  error  is  so  obvious  and  material  in  this 
case  that  reference  to  authority  seems  a  work  of  superero- 
gation. 

3.  The  third  proposition  assumes  that  Hereford's  state- 
ment concerning  the  character  of  a  storm  is  true,  and  that 
he  was  justified  in  abandoning  post  by  reason  thereof.     Its 
tendency  is  to  influence  the  jury  to  take  his  statement  as 
conclusive  against  the  testimony  of  all  the  other  witnesses, 
who  did  not  seem  to  be  aware  that  such  a  storm  had  an 
existence  there  at  that  time.     Even  if  such  was  the  fact  the 
hardship  did  not  excuse  him  from  the  performance  of  his 
contract:  2  Pars.  Con.  672-6. 


March,  1875.]         DUNN  v.  HEREFORD.  209 

Opinion  of  the  Court — Fisher,  C.  J. 

II.  It  is  also  claimed  that  the  court  erred  in  refusing  in- 
structions asked  by  plaintiff  in  error: 

1.  Because  instruction  one  is  to  the  effect  that  one,  failing 
willfully  or  negligently  to  fulfill  the  obligations  of  his  con- 
tract, is  responsible  for  damages  resulting  from  such  fail- 
ure, embodies  correctly  the  law  on   that   subject:   3  Par. 
on  Con.  180,  notes  V.  &  W.  218 ;  Sedg.  on  Dam.  44,  492. 

2.  The  court  also  erred  in  refusing  the  second  instruction 
asked,  to  the  effect  that  an  employer  may  discharge  his 
employee  for  neglecting  or  refusing  to  do  his  duty,  or  in 
other  words,  for  cause,  and  not  be  liable  to  him  for  wages 
thereafter:  2  Par.  on  Con.  40. 

III.  The  court  erred  in  overruling  the  plaintiff's  motion 
for  a  new  trial.     In  addition  to  the  reasons  heretofore  urged, 
the  motion  should  have  prevailed  on  the  fourth  and  fifth 
grounds  stated  in  the  motion,  to  wit :  the  verdict  being  un- 
sustained  by  sufficient  evidence  and  contrary  to  law,  and 
errors  in  assessing  damages.     There  are  fifteen  days'  wages 
given  in  the  verdict  and  in  the  judgment,  which  item  was 
entirely  unsupported  by  evidence.     Plaintiff  admits  he  did 
not  work  for  Dunn  during  that  time,  but  claims  he  was  not 
discharged.     The  overwhelming  weight  of  testimony,  how- 
ever, is  that  he  was  discharged.     If  such  is  the  fact,  then 
both  grounds  were  well  taken.     Arid  if  he  was  discharged 
for  cause,  he  was  not  only  not  entitled  to  the  fifteen  days' 
service  or  wages,  but  was  not  entitled  to  recover  at  all :  2 
Par.  on  Con.  40,  676. 

Thomas  J.  Street,  for  defendant  in  error. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  brought 
to  this  court  by  petition  in  error  from  the  district  court  of 
Laramie  county,  and  submitted  upon  the  brief  of  plaintiff 
in  error.  The  principal  errors  complained  of  are  as  to  the 
instructions  of  the  court  below  to  the  jury,  which  were  to 
the  effect  that  if  the  plaintiff  in  error,  who  was  defendant 
below,  hired  Hereford,  who  was  plaintiff  below,  for  the  term 
of  a  moiith  at  a  stipulated  sum,  and  discharged  him  before 
14 


210  REGAN  v.  JONES.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

the  expiration  of  the  month  without  sufficient  cause,  he  was 
bound  to  pay  him  for  the  full  month ;  or  if  he  discharged 
him  before  the  time  agreed  upon  having  expired,  at  a  great 
distance  from  home  and  in  an  uninhabited  country,  that  he 
was  bound  to  settle  with  him  and  pay  him  the  amount 
found  to  be  due.  And  after  said  instruction  was  given,  the 
whole  question  was  submitted  to  the  jury  to  pass  upon  the 
facts  proven. 

The  jury  then  found  for  the  plaintiff  below  the  amount  of 
his  claim. 

We  are  of  the  opinion  that  in  this  there  was  no  error  such 
as  justifies  this  court  in  interfering:  See  2  Kent,  258-9  and 
notes. 

Judgment  affirmed. 


REGAN  v.  JONES. 

INDORSEMENT. — Where  a  joint  and  several  note  made  by  the  three  de- 
fendants to  the  order  of  plaintiff  and  another  party,  was  by  that 
party  indorsed  and  transferred  to  the  plaintiff;  Held,  that  the  plain- 
tiff alone  could  bring  suit  on  the  note,  and  that  the  district  court 
did  not  err  in  overruling  a  demurrer  to  plaintiff's  petition,  on  the 
ground  that  "there  was  a  defect  of  parties  plaintiff." 

ERROR  to  the  Third  District  Court  for  Uinta  County. 
The  opinion  contains  a  statement  of  the  case. 

J.  W.  Kinyman,  for  plaintiff  in  error,  cites  the  following 
authorities  :  Story  on  Prom.  Notes,  sees.  118,  120, 120a,  125; 
Story  on  Bills,  sec.  197  ;  Byles  on  Bills,  145 ;  Chit,  on  Bills, 
67 ;  Story  on  Part.  sec.  323 ;  Wyoming  Stat.  1873,  27,  sec. 
23. 

H.  Garbanati,  for  defendant  in  error :  The  demurrer  shall 
specify  distinctly  the  grounds  of  objection  to  the  petition. 
Unless  it  do  so,  it  shall  be  regarded  as  objecting  only  that 
the  petition  does  not  state  facts  sufficient  to  constitute  a 


March,  1875.]  REGAN  v.  JONES.  211 

Opinion  of  the  Court — Carey,  J. 

cause  of  action  :  Stat.  1873,  38,  sec.  86.  By  this  it  appears 
that  there  can  be  but  one  demurrer  to  the  petition,  which 
must  set  forth  all  the  grounds  of  demurrer. 

By  the  Court,  CAREY,  J. :  The  petition  in  the  district 
court  alleges  that  on  the  eleventh  day  of  January,  1873,  C. 
P.  Regan,  R.  H.  Carter  and  William  Crawford,  plaintiffs 
in  error,  made  their  certain  promissory  note  of  that  date, 
payable  in  six  months  from  date,  in  the  sum  of  four  hundred 
dollars,  to  Charles  Jones,  the  defendant  in  error  in  this 
court,  and  plaintiff  in  the  court  below,  and  John  Haggerty, 
and  delivered  the  same  ;  and  that  the  said  Haggerty  did  then 
and  there  indorse  and  deliver  said  promissory  note  to  said 
Charles  Jones,  and  that  no  portion  of  said  money  due  on 
said  note  was  paid  to  Charles  Jones  and  John  Haggerty  be- 
fore said  indorsement,  or  to  Charles  Jones  since  the  said 
indorsement.  On  the  back  of  the  copy  of  the  note,  filed 
with  the  petition,  is  indorsed  the  name  of  "  John  Haggerty." 
To  this  petition  the  defendants  in  the  court  below  inter- 
posed a  demurrer,  and  assigned  as  cause  of  demurrer : 

1.  That  the  indorsement  of  the  note  was  not  such  an  in- 
dorsement as  transfers  entire  interest  to  the  indorsee. 

2.  That  the  note  was  not  indorsed  by  the  payer  thereof. 

3.  That  the  suit  is  not  brought  by  the  real  party  in  in- 
terest. 

After  argument  on  the  demurrer,  the  district  court  over- 
ruled the  demurrer,  and  it  is  this  ruling  of  the  court  that  is 
assigned  as  error.  Section  94  of  the  Code,  Laws  1869,  pro- 
vides in  what  cases  the  defendant  may  file  a  demurrer ;  the 
causes  specified  being  six  in  number.  And  section  98  pro- 
vides that  when  any  of  the  matters  enumerated  in  section  94 
do  not  appear  on  the  face  of  the  petition,  the  objection  may 
be  taken  by  answer.  It  has  been  repeatedly  held  in  the 
states  that  have  a  code  similar  to  ours,  that  all  objections  to 
a  petition  not  falling  within  the  enumerated  causes  of  de- 
murrer in  section  94,  must  be  taken  by  answer:  5  N.  Y.  363  ; 
8  How.  235. 


212  REGAN  v.  JONES.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

It  does  not  appear  by  the  demurrer  in  question  under 
which  head  of  section  94  it  was  intended  to  be  interposed, 
except  it  be  under  subdivision  fourth :  "  That  there  is  a  de- 
fect of  parties  plaintiffs." 

The  code  provides  with  certain  exceptions,  and  this  case 
does  not  come  within  the  exceptions  that  every  action  must 
be  prosecuted  in  the  name  of  the  real  party  in  interest ;  and 
it  is  contended  by  the  counsel  for  plaintiff  in  error  that 
the  real  party  or  parties  in  interest  were  not  the  prosecutor 
in  this  case.  The  rule  often  is  cited  that  when  a  note  is 
made  payable  to  two  persons  not  partners  (as  A.  and  B.)  or 
order,  the  transfer  can  only  be  made  by  a  joint  indorsement 
of  them  both.  This  is  undoubtedly  the  rule  to  make  notes 
and  bills  payable  to  order,  which  are  transferable  by  in- 
dorsement, negotiable,  but  the  transfer  by  delivery  is  suffi- 
cient to  enable  the  holder  to  sue  in  his  own  name :  20  N.  Y. 
472.  No  particular  form  of  assignment  to  transfer  a  bill  or 
note  is  required,  except  to  make  it  negotiable  and  subject 
to  the  law  which  governs  negotiable  paper.  Such  assign- 
ment may  be  in  writing  or  by  parol.  If  Haggerty  did  not 
intend  to  transfer  his  interest  in  the  note  to  Jones  by  his 
indorsement  and  delivery  of  the  same,  the  defendants  in  the 
court  below  could  have  taken  advantage  of  it  in  their  an- 
swer. 

Again,  it  is  contended  that  by  the  overruling  of  the  de- 
murrer, the  defendants  in  the  court  below  were  deprived  of 
the  benefit  of  their  offset,  but  one  cannot  see  how  it  could 
deprive  them  of  any  of  their  rights.  Section  83  of  the  code 
provides  that  in  the  case  of  an  assignment  of  a  thing  in  ac- 
tion, the  action  of  the  assignee  shall  be  without  prejudice 
to  any  set-off  or  other  defense  existing  at  the  time  of  or 
before  notice  of  assignment,  but  that  the  section  shall  not 
apply  to  a  negotiable  promissory  note  or  bill  of  exchange 
transferred  in  good  faith  upon  good  consideration  before 
due. 

In  an  action  by  an  assignee,  the  assignee  stands  in  the 
place  of  the  assignor,  and  the  defendant  may  avail  himself 


March,  1875.]         GREGORY  v.  MORRIS.  213 


Argument  for  Plaintiff  in  Error. 


of  any  defense  which  he  might  have  interposed  had  the  ac- 
tion been  brought  by  the  assignor.  The  assignee  takes  the 
demand,  except  in  the  cases  excepted  by  the  section,  sub- 
ject to  the  equities  existing  between  the  parties  to  the  con- 
tract. 

For  the  foregoing  reasons  the  court  sustains  the  ruling 
of  the  court  below. 

Judgment  affirmed. 


GREGORY  v.  MORRIS  ET  AL. 

REPLEVIN. — Where,  in  an  action  of  replevin,  the  court  refused  under  the 
pleadings  to  permit  the  defendant  to  prove  title  to  the  property,  but 
permitted  the  defendant  to  so  amend  his  answer  that  the  court  might 
admit  such  evidence:  Held,  that  the  court  did  not  err  in  so  doing. 

IDEM. — The  right  of  possession  merely  is  sufficient  to  enable  a  party  to 
maintain  an  action  of  replevin. 

IDEM. — In  a  contract  between  vendor  and  vendee,  which  contained  a 
clause  to  the  effect  that  the  right  of  property  should  remain  in  the 
vendor,  with  the  right  to  seize  the  same  at  any  time  until  the  vendee 
should  have  complied  with  the  terms  of  the  contract:  Held,  that 
such  clause  was  valid  as  between  parties,  and  that  an  action  in  re- 
plevin could  be  maintained  by  the  vendor,  although  possession  had 
been  given  to  the  vendee. 

IDEM. — Although  a  general  verdict  in  an  action  of  replevin  is  not  strictly 
in  accordance  with  the  provisions  of  the  code  of  procedure,  yet  it  is 
not  such  an  error  as  to  justify  the  interference  of  an  appellate  court, 
unless  it  is  shown  that  the  plaintiff  in  error  sustained  injury  thereby. 

[This  case  was  affirmed  by  the  supreme  court  of  the  United 
States,  in  March,  1878.] 

ERROR  to  the  Second  District  Court  for  Albany  County. 

The  opinion  of  the  chief  justice  contains  a  sufficient  state- 
ment of  this  case. 

W.  W.  Corlett  and  M.  C.  Brown,  for  plaintiff  in  error. 

I.  One   of  the  errors  complained  of  by  the    plaintiff  in 
error  is,  that  the  court  below  erred  in  permitting  the  defend- 


214  GREGORY  v.  MORRIS.  [Sup.  Ct. 

Argument  for  Haintiff  in  Error. 

ants  to  file  an  amendment  to  their  answer,  setting  up  a  new 
and  substantial  ground  of  defense  during  the  trial  of  the 
case.  On  this  point  see  section  148  of  Code  of  Civil  Pro- 
cedure of  Wyoming  Territory,  title  "Replevin,"  Laws  of 
1869 ;  2  Greenl.  on  Ev.  sec.  560  et  seq. 

II.  The  said  plaintiff  in  error  moved  to  set  aside  the  ver- 
dict in  said  case  because  it  was  not  sustained  by  sufficient 
evidence.     The  court  overruled  said  motion  to  set  aside  the 
verdict  and  defendant  excepted.     This  was  manifestly  error, 
for  the  reason  that  the  defendant  Poteet  could  not  have  been 
damaged  in  the  amount  found  by  the  verdict,  for  he  had  no 
interest  in  the  cattle,  being  merely  an  agent  for  the  defend- 
ant Morris,  to  take  and  sell  the  cattle  for  Morris.     On  this 
point  see  Goe  v.  Peacock,  14  Ohio,  187 ;  Booth  et  al.  v.  Able- 
man  et  al.,  20  Wis.  23. 

III.  The  said  plaintiff  in  error  also  moved  to  set  aside  the 
verdict  in  said  case  because  the  assessment  of  damages  was 
manifestly   erroneous.      Said    motion    was    overruled,   and 
plaintiff  excepted.     That  this  was  error  is  manifest  when  it 
is  considered  that  C.  E.  Poteet,  a  mere  employee  of  W.  A. 
Morris,  and  having  no  interest  in  the  property  in  question, 
has    a  verdict   for   damages  with  W.  A.  Morris  for  seven 
thousand  four  hundred  and  fifty-four  dollars  and  ninety  cents  : 
See  Coe  v.  Peacock,  14  Ohio  S.  187  ;  Code  of  Civ.  Proc.  1869, 
sec.  195 ;  Pow.  on  App.  Proc.  145,  146 ;  Hewsen  v.  Saffin  $ 
Smith,  7  Ohio,  232;  2  Nash's  PI.  and  Pr.  828,  829. 

IV.  A  fourth  error  on  the  part  of  said  district  court,  and 
for  which  the  said  plaintiff  in  error  moved  said  court  to  set 
aside  said  verdict  of  the  jury,  was  that  said  verdict  was  not 
in  proper  form,  as  it  did  not  find  that  the  defendants,  or 
either  of  them,  were  entitled  to  the  right  of  possession  or 
property  in  the  cattle  in  question.     But  the  court  overruled 
said  motion  to  set  aside  said  verdict  and  render  judgment 
thereon.     That  this  was  error:  See  Code  of  Civ.  Proc.  1869, 
sec.  195  ;  Powell  on  App.  Proc.  145, 146  ;  Hewsen  v.  Saffin  $ 
Smith,  7  Ohio,  part  2,  232 ;  2  Nash  PI.  and  Pr.  828,  829. 

V.  A  fifth  error  of  said  district  court  complained  of  by 


March,  1875.]         GREGORY  v.  MORRIS.  215 

Argument  for  Plaintiff  in  Error. 

said  plaintiff  in  error  is,  that  said  district  court  erred  in 
permitting  a  certain  contract  to  be  read  to  the  jury,  the  said 
alleged  contract  being  in  writing.  This  was  clearly  error, 
for  two  reasons  :  First,  because  the  execution  of  said  writ- 
ten contract  had  not  been  proved ;  Second,  because  the  con- 
tract was  irrelevant.  On  the  first  ground  of  objection,  see 
1  Greenl.  on  Ev.  sec.  569  et  aeq.  ;  2  Phill.  on  Ev.  386-7-8-9, 
394,  and  cases  there  cited  ;  11  Wend.  136  ;  9  Johns.  136 ;  15 
Pick.  534;  5  Cowen,  383-;  13  Wend.  118,  188;  5  Car.  & 
Payne,  48 ;  2  Serg.  &  Rawle,  420.  On  the  second  point  of 
this  alleged  error :  See  3  Pars,  on  Con.  234-243,  ch.  ix,  title 
"  Lien ;  "  1  Pars,  on  Con.  569-572,  title,  "  Mortgage." 

VI  and  VII.  These  alleged  errors  involve  the  same  ques- 
tions involved  in  error  V. 

VIII.  Another  alleged  error  of  the  said  district  court,  as 
shown  by  the  record,  is  involved  in  the  first  instruction  of 
the  court  to  the  jury.     This  instruction  is  inconsistent  with 
instruction  No.  3,  as  given  by  the  court,  and  assumes  that 
all  the  writings  given  in  evidence  by  defendants  were  duly 
proved,  so  far  as  their  execution  was  concerned ;  and  also 
assumes  that  the  defendant  Poteet  took  possession  of  the 
cattle  by  virtue  of  certain  writings  given  in  evidence,  and 
also  assumes  that  the  defendants  retained  a  lien  on  the  cat- 
tle without  possession  and  without  taking  a  mortgage  on  the 
cattle,  as  required  by  the  laws  of  this  territory  :  3  Pars,  on 
Con.  234,  243,  title  "  Lien ;  "  1  Pars,  on  Con.  569-572. 

IX.  As  to  the  alleged  error  involved  in  the  second  in- 
struction of  the  district  court  given  to  the  jury,  see  author- 
ities cited  as  to  error  8  ;  and, 

X.  As  to  the  alleged  error  involved  in  the  third  instruc- 
tion given  to  the  jury  by  the  said  district  court,  see  author- 
ities above  cited. 

XL  As  to  the  error  involved  in  the  fourth  instruction 
given  to  the  jury  by  said  district  court,  it  may  suffice  to 
say  that  the  court  by  its  instruction  treats  the  said  contract 
between  said  Gregory  and  Morris  as  a  chattel  mortgage 
with  all  its  incidents,  and  among  other  incidents  which  the 


216  .     GREGORY  v.  MORRTS.  [Sup.  Ct. 


Argument  for  Defendant  in  Error. 


court  gives  is  that  of  a  right  of  redemption  in  the  mortgagor 
after  condition  broken.  On  this  question  see  the  authorities 
above  cited  in  1  and  3  of  Par.  on  Con. 

XII.  The  alleged  error  involved  in  the  fifth  instruction, 
given  by  said  district  court  to  the  jury,  is  fully  considered 
in  the  preceding  alleged  erroneous  instructions. 

XIII.  The  sixth  instruction  given  by  the  court  to  the 
jury  was  erroneous  for  two  reasons  :  1.  Because  there  was 
no  evidence  before  the  jury  to  enable  them  to  compute  the 
difference  between  gold  and  currency ;  and,  2.  Because  the 
verdict  and  judgment  in  the  case,  if  the  plaintiff's  obligation 
was  to  pay  for  the  cattle  in  gold,  should  be  for  the  proper 
amount  in  gold    and  not  in  currency.     On   this  point  see 
Butler  v.  Horwits,  7  Wall.  258  ;  7  Id.  229  ;  Tribilcock  v.  Wil- 
son, 12  Wall.  687;  Jones  v.  Childs  and  VansicTce,  8  Nev.  121. 

XIV.  The  next  alleged  error  in  this  case  relates  to  the 
seventh  instruction  of  the  court  below  to  the  jury. 

J.  W.  Kingman,  for  defendant  in  error. 

I.  To  the  first  error  relied  on  by  the  plaintiff,  we  say  that 
the  issue  tendered  by  the  defendants  was  simply  non  detinet, 
that  they  did  not  unlawfully  detain  the  property  replevied. 
But  this  plea  puts  in  issue  the  title  to  or  ownership  of  the 
property:  10  Ohio  344;  12  Id.  112.     No  amendment  was 
therefore  required  in  order  to  let  in  evidence  of  ownership 
in  the  defendants,  and  the  plaintiff  was  wrong  in  objecting 
to  such  evidence  and  compelling  defendant  to  amend.     He 
can  take  no  advantage  of  error  in  his  favor :  Seney's  Code, 
276,  sec.  17. 

II.  Second,  third  and  fourth.     It  it  sufficient  answer  to 
each  of  the  second,  third  and  fourth  objections  that  a  gen- 
eral verdict  for  defendant  finds  the  issue  presented  for  them 
and  finds  the  right  of  property  and  right  of  possession  in 
them.     It  was  then  the  duty  of  the  jury  to  assess  such  dam- 
ages for  the    defendants  as  they    might    think  right    and 
proper:  Seney's  Code,  275,  377. 

III.  The  execution  of  the  contract  was  proved  by  Greg- 


March,  1875.]         GREGORY  v.  MORRIS.  217 

Opinion  of  the  Court —Fisher,  C.  J. 

ory  himself  on  cross-examination.  But  no  objection  of  this 
kind  was  taken  at  the  trial,  and  cannot  be  taken  now  :  Hill, 
on  New  Trials,  77. 

IV.  The  written  contract  was  the  only  contract  made  by 
the  parties.     It  was  the  duty  of  the  court  to  instruct  the 
jury  as  to  its  legal  effect,  and  this  construction  can  only  be 
assailed  by  showing  it  to  be  erroneous  or  that  it  misled  the 
jury :  Hill  on  New  Trials,  250 ;  1  Par.  on  Con.  569. 

V.  The  currency  of  the  country  is  a  matter  of  public  no- 
toriety, and  both  the  court  and  the  jury  will  and  must  take 
judicial  notice  of  it  without  proof:  1   Greenl.  sec.  4-6  ;  1 
Phill.   618-626.      The   cases   cited   from    Wallace   are   all 
divided  opinions  and  turn  on  another  point,  to  wit :  whether 
legal   tenders  can    pay  a  contract  payable  in  gold  by  its 
terms.     If  there  is  an  error,  it  is  only  one  of  computation, 
and  this  court  will  correct  it.     The  verdict  will  not  be  set 
aside.     But  this  point,  as  now  presented,  was  not  raised  at 
the  trial:  Hill,  on  New  Trials,  78. 

As  to  the  objection  of  sending  written  evidence  to  the 
jury  room :  Seney's  Code,  368 ;  Hill,  on  New  Trials,  174. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  in  re- 
plevin, brought  to  this  court  from  the  February  term,  A.  D. 
1874,  of  the  district  court  in  and  for  the  county  of  Albany, 
in  the  second  judicial  district  of  the  territory  of  Wyoming. 

The  record  of  the  case  shows  that  on  the  twenty-sixth 
day  of  February,  A.  D.  1873,  W.  A.  Morris,  one  of  the  de- 
fendants in  error,  and  A.  J.  Gregory,  plaintiff  in  error, 
entered  into  a  written  contract,  in  the  city  of  Austin,  in  the 
state  of  Texas,  stipulating  for  the  sale  of  a  large  number  of 
cattle  to  A.  J.  Gregory,  in  accordance  with  a  schedule  of 
prices  attached  to  and  made  a  part  of  the  record  in  this 
action.  One  of  the  terms  of  said  contract  was  that  the  said 
Morris,  having  sold  and  delivered  to  said  Gregory  the  cattle 
referred  to  in  the  written  contract,  was  to  retain  a  lien  on 
the  cattle  until  the  whole  of  the  purchase-money,  amounting 
to  between  seven  and  eight  thousand  dollars,  should  be 


218  GREGORY  v.  MORRIS.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

paid  by  Gregory,  and  that  in  the  event  of  the  balance  of 
said  purchase -money  not  being  paid  on  or  before  the  first 
day  of  October,  A.  D.  1873,  that  then  the  agent  of  Morris, 
viz :  C.  E.  Poteet,  was  to  sell  all  or  such  portion  of  said 
cattle,  as  would  pay  the  purchase-money  then  remaining  due 
and  unpaid,  as  well  as  the  wages  and  other  expenses  of  said 
Poteet,  as  has  been  stipulated  for  in  the  said  written 
contract. 

The  written  contract  having  been  duly  signed  by  the 
parties,  Morris  gave  Poteet  a  power  of  attorney  authorizing 
him  to  accompany  and  retain  the  lien  provided  for  in  said 
contract. 

The  parties  arrived  on  the  Laramie  plains  with  said  cattle 
some  time  in  the  month  of  September,  A.  D.  1873,  and  the 
cattle,  remained  in  the  possession  of  Gregory  from  that  time 
until  October  4,  1873,  at  which  time  the  purchase-money 
not  having  been  paid,  Poteet  took  forcible  possession  of  the 
cattle  and  drove  them  from  the  ranch  at  which  they  were 
grazing  to  the  ranch  of  Mr.  Alsop,  some  distance  from 
there. 

Gregory  then  brought  his  action  in  replevin  to  recover 
possession  of  the  cattle  and  damages  for  the  wrongful  de- 
tention thereof  against  both  Morris  and  Poteet,  setting  up 
the  ordinary  counts  in  his  petition. 

The  defendants  filed  an  answer,  denying  all  the  allega- 
tions of  plaintiff's  petition,  and  denying  specially  that  they 
wrongfully  detained  the  said  property. 

The  case  coming  on  for  trial  in  the  district  court,  the 
plaintiff  proved  the  possession,  ownership,  taking,  demand 
and  detention  of  the  property,  with  the  value,  etc. 

The  defendants  then  undertook  to  introduce  the  written 
contract  and  other  documentary  evidence,  which  was  ob- 
jected to  by  plaintiff's  attorneys,  and  the  objection  was 
sustained  by  the  court.  Defendants  then  asked  permission 
to  amend  their  answer,  setting  up  the  special  matter  which 
had  been  refused  under  the  original  answer.  This  was  also 
objected  to  by  attorneys  for  plaintiff,  but  the  objection  was 


March,  1875.]          GREGORY  v.  MORRIS.  219 

Opinion  of  the  Court — Fisher,  C.  J. 

overruled,  the  written  evidence  was  admitted,  to  which  the 
plaintiffs'  attorneys  reserved  their  "  exception." 

All  the  evidence  on  the  part  of  the  defendants  was  then 
given,  together  with  certain  rebutting  evidence  on  the  part 
of  the  plaintiff,  and  the  case  went  to  the  jury  under  certain 
instructions  of  the  court,  to  some  of  which  exceptions  were 
saved,  which  will  be  adverted  to  hereafter,  and  the  jury  re- 
turned a  verdict  for  defendants,  assessing  the  damages  at 
seven  thousand  four  hundred  and  fifty-four  dollars  and 
ninety  cents,  and  judgment  was  duly  entered  on  the  ver- 
dict. 

The  plaintiff's  attorneys  filed  a  motion  for  a  new  trial, 
and  assigned  the  same  errors  which  are  brought  to  this 
court  by  petition  in  error.  The  errors  relied  upon  by  the 
plaintiff  in  error,  who  was  plaintiff  below,  are : 

1.  That  the  court  below  permitted  the  defendants  to  file 
an  amended  answer  to  plaintiff's  petition,  in  which  they  set 
out  the  documentary  evidence  upon  which  they  relied  to 
defeat  the  plaintiff's  claim. 

2.  That  certain  questions  were  permitted  to  be  propounded 
to  the  plaintiff  on  his  cross-examination  touching  the  terms 
of  the  contract  for  the  sale  and  purchase  of  the  cattle  taken 
in  replevin. 

3.  The  instructions  of  the  court  below,  as  well  as  the  in- 
structions refused    to  be    given    on  behalf  of  the  plaintiff. 
There  are  a  large  number  of  exceptions  taken,  but  we  find 
that  the  foregoing  embrace  the  substance  of  the  whole. 

If  there  was  any  error  on  the  part  of  the  judge  who  pre- 
sided at  the  trial  of  the  case,  on  the  subject  of  permitting 
or  refusing  the  written  contractor  other  documentary  evi- 
dence, we  do  not  find  that  the  plaintiff  had  the  right  to 
complain  of  it,  from  the  fact  that  we  are  of  opinion  that  the 
defendants  should  have  been  permitted  to  have  given  the 
said  evidence  under  the  issues  raised  by  the  petition  and 
answer.  The  petition  of  the  plaintiff  set  out  the  wrongful 
detention  of  the  cattle,  which  constitutes  the  gist  of  the  ac- 
tion in  replevin,  while  the  defendants  set  up  the  plea  of  non 


220  GREGORY  v.  MORRIS.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

detinet.  The  plaintiff's  attorneys  claim  that  the  plea  of  non 
detinet  at  common  law  admits  the  title  to  be  in  the  plaintiff. 
This,  however,  is  clearly  wrong  ;  the  plea  of  non  cepit,  which 
was  the  general  issue  at  common  law  in  actions  in  replevin, 
originally  did  admit  the  title  to  the  property  to  be  in  the 
plaintiff,  but  this  was  only  so  long  as  actions  in  replevin 
were  resorted  to  to  recover  goods  and  chattels  distrained 
for  rent :  See  3  Blackstone,  13.  But  under  our  statute  the 
plea  of  non  cepit  is  hardly  ever  set  up,  but  the  wrongful  de- 
tention usually  being  the  turning  point  in  the  case,  the  plea 
of  non  detinet  has  virtually  become  the  general  issue. 

If  then,  the  defendants  plead  the  general  issue,  we  think 
they  should  have  been  permitted  to  have  proven  property 
in  the  cattle  taken  in  replevin.  It  is  true  the  plea  of  "  prop- 
erty "  is  set  up  in  many  of  the  courts  in  this  country,  but  we 
think  that  under  the  practice  in  this  territory  that  the  de- 
fendants had  the  right  to  prove  property  in  themselves 
under  their  general  denial,  or  at  least  under  the  special 
denial  of  the  wrongful  detention  of  the  property.  Now, 
conceding  this  to  have  been  error,  was  it  such  an  error  as 
the  plaintiff  could  complain  of?  Surely  not ;  the  court  hav- 
ing refused  to  permit  defendants  to  give  in  evidence  the  tes- 
timony by  which  they  could  establish  their  right  to  the  pos- 
session of  the  property  taken  in  replevin. 

We  think  the  court  below  did  right  in  permitting  the  de- 
fendants to  amend  their  answer,  so  that  the  facts  might  go 
to  the  jury.  Amendments  of  this  character  are  clearly  per- 
missible under  the  code  of  civil  procedure  of  Wyoming : 
this  is  especially  so  when  we  take  into  consideration  the 
ruling  of  the  court  on  the  objection  of  the  evidence  under 
the  original  answer  filed.  Another  reason  why  we  do  not 
find  any  error  in  permitting  the  amendment  to  the  answer 
to  be  filed,  is  found  in  section  149  of  the  code  of  1869  :  That 
"  the  court  in  every  stage  of  action  must  disregard  any  error 
or  defect  in  the  pleading  or  proceedings  which  does  not 
affect  the  substantial  rights  of  the  adverse  party,  and  no 
judgment  shall  be  reversed  or  affected  by  reason  of  such 


March,  1875.]         GREGORY  v.  MORRIS.  221 

Opinion  of  the  Court— Fisher,  C.  J. 

error  or  defect."  Now,  while  we  do  not  find  any  error,  unless 
it  be  the  refusal  of  the  court  to  allow  the  documentary  evi- 
dence to  be  given  under  the  original  answer,  yet  even  if 
there  was  any  other  error,  surely  the  ruling  of  the  court  did 
not  wrongfully  affect  the  rights  of  the  plaintiff. 

The  next  point  to  be  considered  is,  whether  the  defend- 
ants had  such  a  right  of  possession  of  the  cattle  in  question 
as  justified  them  in  taking  them  into  possession  and  refusing 
to  surrender  them-  to  the  plaintiff  on  demand  being  made  ? 
A  reference  to  the  written  contract,  we  think,  is  enough  to 
satisfy  any  one  on  this  question.  Written  contracts  are 
supposed  to  contain  the  intentions  of  the  contracting  parties 
at  the  time  they  are  made,  and  while  ordinarily  the  delivery 
of  chattels  into  the  custody  of  the  vendee  is  a  transfer  of 
the  right  of  property  from  the  vendor  to  the  vendee,  and  as 
between  them  and  third  parties  the  law  presumes  that  a 
change  of  possession  carries  with  it  a  change  of  title  ;  but 
as  between  the  vendor  and  vendee,  there  may  very  readily 
be  such  stipulations  as  causes  the  right  of  property  to  re- 
main in  the  vendor,  as  gives  him  the  right  to  resume  posses- 
sion upon  the  breach  of  any  of  the  covenants  contained  in 
the  stipulations  of  sale  :  See  3  Par.  on  Con.  252,  258.  The 
record  in  this  case  discloses  just  such  a  contract,  containing 
such  a  stipulation — that  if  the  vendee  failed  to  comply  with 
the  terms  of  the  written  contract,  that  then  the  property  was 
to  revert  to  the  vendor  under  other  covenants  in  said  con- 
tract. 

The  next  point  to  be  considered  is,  the  instructions  of  the 
court,  viz.,  that  the  rights  of  the  parties  are  to  be  deter- 
mined by  the  terms  of  the  written  contract;  but  having 
treated  of  this  under  the  second  point  considered,  we  need 
not  enlarge  here,  as  we  deem  it  sufficient  to  say  that  we  find 
no  error  in  the  instructions  given. 

There  is  another  error  complained  of,  and  that  is,  that  the 
verdict  of  the  jury  should  have  been  based  upon  a  gold 
standard,  inasmuch  as  the  sum  due  on  the  contract  was  pay- 
able in  gold,  but  this  suit  not  having  been  brought  on  the 


222  GREGORY  v.  MORRIS.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

contract,  but  for  damages  for  the  wrongful  taking  and  deten- 
tion of  the  property,  the  jury  did  right  in  returning  their 
verdict  without  reference  to  the  standard  of  either  gold  or 
currency. 

There  is  one  other  question  raised  by  the  plaintiff  in  error 
which  perhaps  demands  the  attention  of  this  court,  and 
which  has  not  been  referred  to,  and  that  is,  the  extent  to 
which  the  jury,  as  it  is  claimed,  should  have  gone  in  mak- 
ing up  their  verdict.  The  code  of  this  territory  provides 
that  where  the  property  taken  in  replevin  has  been  taken  by 
the  plaintiff,  and  the  jury  find  for  the  defendant,  they  shall 
find  whether  the  defendant  at  the  commencement  of  the  ac- 
tion had  the  right  of  property  or  the  right  of  possession 
only,  and  in  either  case  shall  assess  such  damages  as  they 
shall  think  right  and  proper  for  the  defendant ;  for  which, 
with  costs  of  suit,  the  court  shall  render  judgment  for  de- 
fendants :  Civ.  Code  of  Wyoming,  1869,  sec.  195.  We  do 
not  think  the  finding  of  either  of  the  matters  specified  in  the 
section  constitutes  a  returning  of  a  verdict,  but  rather  the 
consideration  of  the  grounds  upon  which  the  verdict  is  based. 
In  other  words,  the  jury  is  instructed  to  find  whether  a  cer- 
tain state  of  facts  exist,  and  if  so,  they  shall  return  their 
verdict  accordingly ;  and  not  that  the  jury  are  to  return  the 
grounds  upon  which  the  verdict  is  based.  It  is  true  Mr. 
Seney,  in  his  code,  holds  that  a  general  verdict  is  not  suffi- 
cient, and  cites  a  case  decided  by  one  of  the  courts  of  Ohio 
on  the  point ;  but  with  all  due  deference  to  that  authority, 
we  are  of  the  opinion  that  in  this  case  no  good  would  be 
accomplished  by  such  a  special  finding,  nor  has  any  injury 
been  sustained  by  either  party  in  consequence  of  the  general 
verdict,  and  as  our  code  provides  that  the  proceedings  shall 
not  be  disturbed  on  account  of  any  informality  which  does 
not  affect  injuriously  either  party,  we  do  not  find  this  a 
ground  to  disturb  the  verdict. 

We  think  substantial  justice  has  been  done,  and  that  the 
verdict  of  the  jury  is  amply  sufficient  to  sustain  all  the  rights 
of  the  parties.  The  judgment  of  the  court  below  is  affirmed. 


March,  1875.J         BONNIFIELD  v.  PRICE.  223 


Statement  of  Facts. 


BONNIFIELD  v.  PRICE. 

STATUTE  OF  LIMITATIONS. — While  the  statute  of  limitations  of  Wyo- 
ming territory  provides  that  a  cause  of  action,  barred  by  the  stat- 
ute of  the  state  or  territory  in  which  it  arose,  is  also  barred  in 
Wyoming,  yet  if  it  conclusively  appears  to  the  court  that  the  de- 
fendant has  been  for  such  a  length  of  time  absent  from  such  state, 
where  the  cause  of  action  originated,  as  to  prevent  the  statute  of 
limitations  running  there,  such  absence  will  also  prevent  the  stat- 
ute running  here,  and  the  court  should  so  hold. 

DEMURRER. — Where  a  demurrer  in  one  action  was  sustained  to  the 
plaintiff's  petition,  for  the  reason  that  it  appeared  from  the  face  of 
the  petition  that  the  cause  of  action  was  barred  by  the  statute  of 
limitations,  and  a  second  action  was  commenced  for  the  same  cause 
of  action,  but  with  the  petition  so  drawn  as  not  to  raise  upon  its 
face  the  question  of  the  statute  of  limitations:  Held,  that  the  judg- 
ment upon  the  demurrer  in  the  first  suit  was  no  bar  to  the  second 
proceeding. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

This  action  was  commenced  in  the  district  court  for  Lara- 
mie county,  in  November,  1874,  by  the  plaintiff  in  error 
against  the  defendant  in  error,  on  a  judgment  recovered 
against  the  defendant  and  one  Joseph  Tyson,  in  the  state 
of  California,  in  the  year  1861.  The  petition  alleges  that 
there  was  remaining  unpaid  of  said  judgment,  on  the  four- 
teenth day  of  December,  1861,  a  balance  of  one  thousand 
seven  hundred  and  sixty-five  dollars  and  seventy-one  cents, 
and  that  said  amount,  with  interest  at  two  and  a  half  per 
cent,  per  month,  still  remains  due.  Judgment  is  prayed  for 
said  amount,  witli  interest.  The  petition  also  avers  that  the 
action  is  not  barred  by  the  statutes  of  limitation  of  Califor- 
nia or  Wyoming,  because  the  defendant  has  not  been  within 
the  state  of  California  or  the  territory  of  Wyoming  for  five 
years  since  the  rendition  of  said  judgment.  The  amended 
answer  contained  a  general  denial  of  petition,  and  plead  in 
bar  to  the  action  a  judgment  rendered  in  said  district  court 
in  favor  of  defendant  and  against  the  plaintiff  on  the  thir- 
teenth day  of  June,  1874,  and  the  statutes  of  limitation  of 
California  and  Wyoming. 

The  evidence  on  the  trial  of  the  issues  raised  by  the  plead- 


224  BONNIFIELD  v.  PRICE.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

ings  showed  that  the  judgment  was  recovered  against  the  de- 
fendant Price  and  one  Joseph  Tyson  in  the  state  of  Califor- 
nia, and  that  the  balance  remained  due  and  unpaid,  as  averred 
in  plaintiff's  petition  ;  that  the  defendant  Price  had  not  been 
in  the  state  of  California  or  the  territory  of  Wyoming  for 
five  years  since  the  rendition  of  the  judgment,  but  that  for 
most  of  the  time  since  the  rendition  of  said  judgment  he  had 
been  absent  from  the  state  in  the  military  service  of  the 
United  States. 

The  evidence  also  showed  that  an  action  was  commenced 
on  the  same  judgment  in  the  said  district  court  at  a  previous 
term,  as  averred  in  the  defendant's  answer;  that  a  demurrer 
was  filed  to  the  petition  in  the  previous  action,  and  that 
judgment  was  given  on  said  demurrer  for  defendant  Price, 
which  judgment  or  demurrer  still  remained  in  full  force. 
The  statutes  of  limitation  of  California  were  offered  in  evi- 
dence, to  which  reference  is  made  in  the  decision  of  the 
court.  The  judge  before  whom  the  case  at  bar  was  tried 
instructed  the  jury  that  they  should  find  for  the  defendant 
Price.  This  instruction  was  based  solely  on  the  statutes  of 
limitation  of  California  and  Wyoming. 

The  jury  that  tried  the  case  in  accordance  with  the  in- 
structions of  the  court  found  for  the  defendant.  After  a 
motion  for  a  new  trial  was  overruled  by  the  court,  judgment 
was  rendered  on  the  verdict  for  the  defendant. 

The  other  facts  in  the  case  sufficiently  appear  in  the  deci- 
sion of  the  court. 

E.  P.  Johnson,  for  plaintiff  in  error : 

I.  The  statute  of  California  provides  that  during  the  time 
the  debtor  is  out  of  the  state  the  statute  of  limitations  does 
not  run,  and  that  time  shall  not  be  computed,  etc.  It  is 
conceded  that  Price  was  out  of  the  state  most  of  the  time 
since  the  rendition  of  the  judgment,  but  section  19,  article 
XI,  of  the  Constitution  of  California  is  relied  on  to  avoid 
that  exception  of  the  statute ;  Price  being  absent  in  the  mil- 
itary service  of  the  United  States.  But  that  constitutional 


March,  1875.]        BONNIFIELD  v. 


Argument  fbr  Plaintiff  in  Error. 


provision  is  to  the  effect  that  such  absence  shall  not  affect 
the  question  of  residence  ;  whereas  in  that  state,  as  in  most 
others,  the  running  of  the  statute  of  limitations  does  not 
depend  in  any  sense  upon  that  question,  and  is  'therefore 
unaffected  by  the  constitution.  That  such  was  the  received 
construction  of  the  English  statutes  of  James  and  Anne, 
and  that  they  applied  to  subjects  of  the  realm  and  foreigners 
alike,  as  well  to  those  who  were  out  of  the  realm  when  the 
cause  of  action  accrued,  as  to  those  who  were  within  the 
realm  and  departed  therefrom  without  any  reference  to 
change  of  residence,  but  simply  to  the  question  of  presence 
or  absence  of  the  party,  is  settled  by  authority  that  is  over- 
whelming arid  admits  of  no  question  :  Angel  on  Lim.  sees. 
194,  204,  206  ;  3  John,  263.  So  in  the  states  where  equiva- 
lent or  analogous  expressions  are  used,  as  "  out  of  the 
state,"  instead  of  "  beyond  the  seas  ;"  the  statutes  are  sup- 
posed by  the  authorities  to  mean  just  what  they  say,  and 
they  so  hold.  The  question  of  residence  or  citizenship  does 
not  enter  into  the  discussion  except  incidentally.  The  su- 
preme court  of  the  United  States,  and  m6st  of  the  state 
courts,  hold  the  words  "beyond  the  seas,"  when  used  in 
the  state  statutes,  to  mean  and  be  equivalent  to  "  out  of  the 
jurisdiction  of  the  state  "  :  Angel  on  Lim.  sec.  200  ;  Nash  PL 
&  Pr.  15  ;  3  Cranch,  174  ;  3  John,  263-7  ;  1  111.  Dig.  363, 
sec.  59  ;  16  Ohio,  145  ;  2  Iowa,  498  ;  16  Cal.  93.  And  in 
several  states  successive  absences  from  the  state  are  counted 
out  of  the  time  limited,  on  the  principle  that  under  the 
statute  the  parties  should  be  in  such  position  that  the  cred- 
itor has  for  the  full  time  limited  an  opportunity  to  enforce 
his  claim  by  suit.  In  a  number  of  the  states,  as  in  Ver- 
mont and  New  York,  a  party  to  have  the  benefit  of  the  dis- 
ability of  defendant,  must  show  not  only  that  he  is  out,  but 
that  he  resides  out  of  the  state,  thus  by  statute  making  it  a 
question  of  residence.  And  in  some  of  those  states  the 
courts  hold  that  while  parties  have  a  legal  residence  in  the 
state,  absence  constitutes  a  residing  out  of  the  jurisdiction 
"dthin  the  meaning  of  the  statute  of  limitations. 
15 


226  BONNIFIELD  v.  PRICE.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

II.  The  evidence  shows  that  the  judgment  sued  on  was 
dormant  in  California,  and  could  not  be  enforced  by  execu- 
tion or  other  proqess.     Hence  it  was  claimed  (and  the  court 
so  held)  that  it  furnished  no  cause  of  action  upon  which 
there  could  be  a  recovery.     Is  the  judgment  dormant?     It 
is,  however,  confidently  claimed  that  the  position  is  erro- 
neous.    At  common  law  a  judgment  becomes  dormant  and 
could  not  be  enforced  by  execution  after  a  year  and  a  day. 

•The  effect  of  the  California  statute  is  to  extend  the  time. 
The  error  consists  in  supposing  that  a  judgment  is  snuffed 
out  of  existence  for  all  purposes,  simply  because  it  is  dor- 
mant, whereas  questions  once  adjudicated  cannot  again  be 
tried.  A  judgment  is  always  a  cause  of  action  from  the 
moment  of  its  rendition,  and  may  be  enforced  by  suit  until 
bound  by  the  statute  of  limitations  :  Broom's  Leg.  Max.  327  ; 
Bigelow  on  Estoppel,  7  ;  3  Black.  421 ;  Freeman  on  Judg- 
ments, sec.  432  ;  16  Cal.  373. 

III.  The  judgment  rendered  in  the  first  case  commenced 
on  this  judgment  was  no  bar  to  this  suit,  as  none  of  the 
matters  in  controversy  here  were  adjudicated  in  that  suit. 
It  was  simply  a  judgment  that  the  former  petition  on  its 
face  did   not  state  a  cause  of  action.     The  only  question 
decided  was  that  the  petition  was  bad,  and  that  the  supreme 
court  affirmed   that  judgment.     A  judgment  on  demurrer, 
where  the  merits  of  the  action  are  not  involved,  is  no  bar  to 
a  subsequent  adjudication  of  the  merits  of  the  case :  Freem. 
on  Judg.  212,  231 ;  2  Smith's  Lead.  Cases,  808 ;   Clark  v. 
Young,  1  Cranch,  181. 

D.  McLaughlin,  for  defendant  in  error. 

There  is^  really  but  one  error  alleged  and  set  forth,  and 
that  is  the  first  one  enumerated.  There  could  be  no  re- 
coveiy  in  this  action  for  the  following  reasons : 

I.  There  was  a  former  adjudication  of  the  same  subject- 
matter  between  the  same  parties  and  hence  the  former  de- 
cision was  a  bar.  1.  The  judgment  of  a  court  of  competent 
jurisdiction  is  not  only  final  as  to  the  matter  in  controversy 


March,  1875.]          BONNIFIELD  v.  PRICE.  227 

Argument  for  Defendant  in  Error. 

and  actually  determined,  but  as  to  every  other  which  the 
parties  neglect  to  litigate  in  the  cause  and  which  they  might 
have  decided :  -  -  v.  Howe,  2  Barb.  586 ;  Southyate  v. 
MacGurney,  1  Page,  41,  3  Comst.  522,  3  Denio,  243;  Hay* 
v.  .Reev,  34  Barb.  156 ;  Harris  v.  Harm,  36  Id.  94 ;  Foster  v, 
— ,  50  Id.  393. 

2.  A  judgment  extinguishes  the  demand,  and  if  the  plain- 
tiff brings  two  actions  for  the  same  cause,  a  judgment  in  one 
is  a  good  bar  to  the  other:  Nichols  v.  Mason,  21  Wend. 
339 ;    White  v.  -       — ,  Seld.  137  ;   Castle  v.  Myers,  4  Kent, 
329;  see  2  Abb.  N.  Y.  Dig.  185,  n.  10,  11,  12;  Freem.  on 
Judg.  sees.  215,  216. 

3.  A  former  judgment  on  demurrer  is  a  bar :  v. 

Davis,  3  Denio,  238;    Cleamates  v.  Meredith,  1  Wall.  25; 
Aurora  City  v.  West,  7  Id.  82 ;   Goodrich  v.  City,  5  Id.  573 ; 
Freem.  on  Judg.  sec.  267. 

4.  There  is  a  well  marked  difference  between  an  order  of 
the  court  and  a  judgment :  See  Code  of  Wyoming,  73,  sec.  509. 
Every  decision  of  a  judge  or  court  made  as  entered  in  writ- 
ing, and  not  included  in  a  judgment,  is  an  order.     Sec.  377 
reads :  A  judgment  is  the  final  determination  of  the  rights 
of  the  parties  in  action. 

An  action  sustaining  a  demurrer  is  not  necessarily  a  judg- 
ment that  finally  determines  the  rights  of  parties.  The 
party  whose  pleading  is  demurred  to  may  be  permitted  to 
amend  in  some  defective  particular  on  such  terms  as  the 
court  may  deem  just,  or  if  not  susceptible  of  amendment, 
the  action  may  be  dismissed  by  the  plaintiff  whose  petition 
ma}r  have  been  demurred  to,  and  the  demurrer  sustained,  and 
a  new  action  begun,  because  there  really  has  been  no  de- 
cision of  the  cause  of  action  in  a  judgment;  when,  on  the 
whole  state  of  facts  presented  in  a  petition,  no  cause  of  action 
is  stilted,  there  can  he  no  cause  of  action  by  an  amendment. 

If  the  plaintiff  in  such  a  case,  in  invoking  a  final  judg- 
ment of  the  court  by  alleging  error  and  taking  exceptions 
and  pressing  the  c;ise  to  judgment,  instead  of  dismissing  his 
action  and  commencing  anew,  he  ought  to  be  made  to  under- 


228  BONNIFIELD  v.  PRICE.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

stand  that  a  final  judgment  of  the  court  on  a  demurrer  is  of 
some  utility,  and  not  merely  an  idle  declaration  that  has  no 
perceptible  effect  in  any  way,  except  to  compel  the  opposite 
party  to  attend  court  at  great  cost  and  inconvenience.  If 
the  judgment  first  rendered  in  this  case  is  not  a  bar,  of  what 
earthly  value  is  it  to  any  one,  and  what  potency  has  the  su- 
preme court  in  offering  it  in  all  things  ?  If  the  court  had 
decided  adversely  to  the  defendant  on  the  demurrer,  he  would 
be  bound  by  the  decision.  The  plaintiff  should  be  equally 
bound  by  its  judgments. 

II.  The  cause  of  action  was  barred  by  the  laws  of  Califor- 
nia, and  therefore  by  the  laws  of  this  territory,  long  prior  to 
the  commencement  of  this  action,  for  these  reasons : 

1.  The  constitution  of  the  state  of  California  (Art.  II., 
sec.  4,  par.  109,  Hittell's  Laws)  provides  that  the  political 
rights  of  no  person  shall  be  affected  by  reason  of  their  being 
in  the  army  or  navy  of  the  United  States. 

2.  In  addition  to  this  guarantee,  the  same  constitution 
provides  (Art.  XL,  sec.  19,  par.  220,  Hittell's  Laws)  :   "  Ab- 
sence from  this  state  on  the  business  of  the  state,  or  of  the 
United  States,  shall  not  affect  the  question  of  residence  of 
any  person." 

The  first  of  these  guarantees  relates  to  political  rights  of 
persons,  and  the  second  to  all  other  rights  depending  on  the 
resid-ence  of  the  party  in  that  state  who  may  depart  the  state 
on  the  business  of  the  state  or  of  the  United  States.  The 
question  of  his  residence  shall  not  be  affected  in  any  man- 
ner, directly  nor  indirectly. 

This  is  but  a  formal  recognition  in  the  fundamental  law 
of  that  state,  of  the  well  known  principle,  that  a  soldier  or 
sailor  retains  the  residence  he  had  when  he  entered  the  army 
or  naval  service,  and  is  not  competent  to  gain  a  residence 
elsewhere  while  he  continues  in  service. 

They  are  not  free  agents,  and  their  movements  from  place 
to  place  are  not  voluntary.  Obedience  to  the  orders  of 
superiors  are  exacted  by  the  rules  and  by  discipline,  and 
all  persons  in  the  army  and  navy  retain  the  political  and 


March,  1875.]         BONNIFIELD  v.  PRICE.  229 

Argument  for  Defendant  in  Error. 

civil  rights  they  possessed  when  they  went  into  either 
branch  of  the  service.  It  would  be  contrary  to  public  policy 
to  hold  otherwise.  By  plaintiff's  own  showing  the  defend- 
ant Price  was  a  resident  of  California  from  1850  until  1862. 
He  entered  the  service  of  the  army  in  September,  1861,  and 
left  the  state  by  order  of  Brigadier-general  Wright  in  April, 
1862,  on  the  business  of  the  United  States,  and  his  absence 
in  the  military  service  has  been  continuous,  except  passing 
through  the  state  en  route  to  Arizona,  under  military  orders, 
in  1872.  His  residence  remains  intact,  and  he  is  now,  and 
has  continued  to  be,  since  April,  1862,  a  resident  of  that 
state.  This  case,  tried,  as  the  records  show,  upon  this 
petition,  and  the  verdict  rendered  upon  the  pleadings  and 
the  proofs,  on  the  thirteenth  day  of  November,  1874. 

The  plaintiff  on  the  following  day  filed  an  amended  peti- 
tion, in  which  the  subject  of  Price's  residence  is  entirely 
left  out,  and  one  allegation  substituted,  that  defendant  was 
not  within  the  state  of  California  or  the  territory  of  Wyo- 
ming for  the  period  of  five  years  since  the  entry  of  the  judg- 
ment sued  upon.  No  issue  could  be  taken  on  this  allega- 
tion by  defendant,  as  the  action  had  been  determined  the 
day  before  in  defendant  Price's  favor.  Even  had  the  alle- 
gation in  the  petition  on  which  the  case  was  tried  been 
made  in  time,  it  would  not  help  the  plaintiff's  case,  for 
these  reasons : 

1.  A  money  judgment  in  California  at  the  date  of  the 
rendition  of  the  judgment,  nor  at  any  time  since,  was  what, 
in  legal  parlance,  is  known  as  "a  cause  of  action  :  "  Cooley's 
Com.  47,  48 ;  1  Kent,  475. 

2.  A  cause  of  action  is  the  right  a  party  has  to  institute 
proceedings  in  a  court  and  carry  them  through  to  judgment. 

3.  "  A  judgment  is  the  final  determination  of  the  rights 
of  the  parties  in  an  action  or  proceedings :  "  Hittell's  Laws, 
par.  5084,  sec.  144,  Pr.  Act. 

4.  When  the  judgment  requires  the  payment  of  money 
*    *    *    the   same  shall   be    enforced    *    *  *  by  execution  : 


230  BONNIFIELD  V.  PRICE.  [Slip.  Ct. 

Argument  for  Defendant  in  Error. 

Hittell's  Laws,  part.  5153,  sec.  213,    Pr.    Act.     No   other 
process  is  known  in  that  state. 

5.  "  The  party  in  whose  favor  judgment  is  given  may  at 
any  time  within  five  years  after  entry  thereof  issue  a  writ  of 
execution  for  its  enforcement :  "  Hittell's  Laws,  par.  5149, 
sec.  209,  Pr.  Act.     "  Every  process  which  may  be  required 
to  completely  enforce  a  judgment  must  be  taken  out  within 
five  years  after  its  entry :  "     Bowen  v.  Crary,  30  Cal.  621 ; 
Mann  v.  McAtee,  37  Cal.  15. 

6.  The  execution  on  a  money  judgment  in  that  state  could 
only  run  against  the  property  of  the  judgment  debtor,  and 
might  be  enforced  against  the  personal  property,  and  that 
proving  inadequate  to  satisfy  it,  his  real  estate  could  be  lev- 
ied upon  :  Hittell's  Laws,  par.  5150,  sec.  210,  Pr.  Act.     The 
fact  that  defendant  Price  was  either  within  or  without  the 
state  for  five  years  after  the  rendition  of  the  judgment  could 
in  no  way  affect  the  judgment.     The   process  of  execution 
could  have  been  issued,  at  any  time  prior  to  the  nineteenth 
day  of  September,  1866,  against  his  property  for  the  enforce- 
ment of  the  judgment ;  but  if  it  was  not  then  in  the  language 
of  the  supreme  court  of  that  state  in  the  case  of  Mann  v.  Mc- 
Atee,  37  Cal.  15,  the  judgment  became  defendant's,  and  the 
remedy  on  it  barred  by  the  lapse  of  time. 

If  the  defendant  did  not  have  property  in  the  state  sub- 
ject to  execution  at  any  time  within  the  five  years,  that  is  a 
misfortune  that  the  law  does  not  provide  against.  It  will 
give  a  party  his  judgment  and  the  process  to  enforce  it,  but 
does  not  undertake  to  furnish  property  for  defendant  to  sat- 
isfy the  execution  aga'inst  them.  It  is  proper  here  to  state 
that  previous  to  April  8th,  1861,  the  practice  act  of  the  state 
of  California  contained  a  section  (214)  that  permitted  an  ex- 
ecution to  issue  after  the  lapse  of  five  years  on  leave  of  the 
court  when  the  party  made  an  affidavit  that  some  part  of 
the  judgment  remained  unsatisfied,  and  was  done  on  that 
date.  This  section  was  repealed  on  the  second  of  April, 
1866.  The  section  was  re-enacted  in  this  modified  form : 
"  In  all  cases  other  than  for  the  recovery  of  money  the  judg- 


March,  1875.]        BONNIFIELD  v.  PRICE.  231 

Argument  for  Defendant  in  Error. 

ment  may  be  enforced  or  carried  into  execution  after  the 
lapse  of  five  years,  by  leave  of  the  court :  "  Parker's  Laws, 
par.  9129,  sec.  214,  Pr.  Act.  Judgments  for  money  are  ex- 
presvsly  reserved  from  the  operation  of  this  section.  In  con- 
cluding the  second  point  raised,  that  the  cause  of  action 
sued  on  in  the  district  court  here  was  barred  by  the  laws  of 
California,  and  therefore  by  the  laws  of  Wyoming.  I  refer 
to  section  19  of  the  code  of  this  territory ;  to  Hittell's  Laws, 
par.  4359,  section  17,  Pr.  Act,  1 ;  and  to  the  following  ad- 
judicated cases  in  the  supreme  court  of  the  state  of  Cali- 
fornia :  Mason  v.  Crouin,  20  Cal.  221 ;  Bowen  v.  Crary,  30 
Cal.  621 ;  Name  v.  McAtee,  37  Cal.  11. 

III.  That  the  judgment  sued  upon  in  this  case  has  been 
defunct  since  the  nineteenth  day  of  September,  1866,  and 
could  not  be  enforced  in  that  state  after  that  time,  nor  be 
the  basis  of  an  action  in  the  courts  of  any  other  state  or  ter- 
ritory. By  the  act  of  congress  of  the  twenty-sixth  of  May, 
1790,  the  judicial  proceedings  of  the  courts  of  any  state  shall 
have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States,  as  they  have  by  law  or  usage  in 
the  courts  of  the  states  from  whence  the  records  of  such  ju- 
dicial proceedings  are  taken  :  Brightley's  Digest,  vol.  1,  p. 
265.  If,  therefore,  the  judgment  sued  upon  in  this  case 
was  defunct  in  California  at  the  commencement  of  this  ac- 
tion, no  action  could  be.  The  judgment  can  have  the  same 
faith  and  credit  here  that  it  would  be  entitled  to  in  the 
courts  of  California  and  no  more.  The  courts  of  that  state 
say  that  every  process  necessary  to  enforce  its  judgments 
must  be  taken  within  five  years  after  the  date  of  its  entry : 
Bowen  v.  Crary,  30  Cal.  62. 

That  money  judgments  shall  be  enforced  by  execution, 
and  this  is  the  only  process  known  to  their  laws  to  enforce 
them  :  Hittell's  Laws,  Pr.  Act,  sees.  209,  210,  and  213.  That 
after  the  lapse  of  five  years  from  the  date  of  entry  of  a 
money  judgment,  it  becomes  defunct  and  all  remedy  is 
barred  :  Parker's  Laws,  9129,  sec.  214 ;  Mann  v.  McAtee,  37 
Cal.  15.  The  statutes  of  limitation  are  statutes  of  repose  : 


232  BONNIFIELD  v.  PiticE.  [Sup.  Ct* 

Opinion  of  the  Court — Carey,  J. 

Spinney  v.  Gray,  Mason's  C.  C.  Rep.  523;  opinion  of 
supreme  court  of  the  United  States,  cas"e  Leffingwell  v.  War- 
ren, 2  Black's  Sup.  Court  Rep.  p.  599. 

The  defense  of  the  statute  of  limitations,  is  a  legal  defense, 
and  stands  on  an  equal  footing  with  other  statutory  defenses 
and  is  not  to  be  discriminated  against  by  the  courts :  Shel- 
den  v.  Jackson,  41  Barb.  55. 

By  the  Court,  CAEEY,  J.  It  is  clear  from  the  laws  of  Cali- 
fornia offered  in  testimony  and  the  other  evidence  in  the 
case,  that  the  judgment  upon  which  this  suit  was  commenced 
in  the  district  court  was  dormant  and  could  not,  from  the 
lapse  of  time,  be  enforced  in  the  state  of  California  by  exe- 
cution. Indeed  this  point  has  not  been  contested.  The 
questions  then  arise,  can  an  action  be  maintained  upon 
a  judgment;  and  if  so,  was  the  action  commenced  in  the 
district  court  in  this  case  barred  by  the  statutes  of  limita- 
tions of  California  or  Wyoming  ?  A  judgment  is  a  contract 
of  record,  and  falls  under  the  head  of  contracts  by  specialty  : 
Chitty  on  Contracts,  2 ;  1  Parsons  on  Contracts,  7.  It  ap- 
pears to  be  settled  by  numerous  decisions  that  a  judgment 
is  such  contract  as  may  be  made  the  basis  of  an  action  in 
the  jurisdiction  where  recovered.  Though  adverse  deci- 
sions may  be  found,  yet  Freemam  on  Judgments  says  that 
the  true  rule  is  that  an  action  may  be  brought  on  a  judg- 
ment and  that  no  other  reason  need  be  stated  for  bringing 
such  suit  than  that  the  judgment  remains  unpaid.  The 
right  to  bring  the  action  is  not  barred  nor  suspended  by  the 
issuing  of  an  execution,  nor  because  the  right  to  take  out 
an  execution  exists. 

This  was  the  rule  at  common  law,  and  has  been  adopted 
by  most  of  the  states :  Freeman  on  Judgments,  432  et  seq. ; 
4  Conn.  402;  28  Id.  112;  20  Johns.  342;  9  Id.  26;  1C 
Id.  372.  It  has  been  expressly  decided  in  the  California 
case  referred  to  that  an  action  may  be  maintained  in  that 
state  on  a  judgment,  and  that,  too,  after  the  right  of  execu- 
tion is  gone  by  lapse  of  time.  It  is  contended  that  this 


March,  1875.]         BONNIFIELD  v.  PRICE.  233 

Opinion  of  the  Court— Carey,  J, 

decision  was  based  upon  a  statute  of  California  now  re- 
pealed, but  on  a  careful  examination  of  the  decision  we  find 
the  decision  is  not  based  on  a  statute,  but  on  the  rule  as  it 
existed  at  the  common  law,  and  the  dictum  of  the  case  of 
Mason  v.  Cronin,  20  Cal.  211,  supports  the  same  rule. 

The  next  question  presented  is  :  Was  this  action  barred  by 
the  statutes  of  limitations  of  California  or  Wyoming  ?  Sec- 
tion 4359  of  .the  laws  of  California,  1850-1854,  provides 
that:  "An  action  upon  a  judgment  or  decree  of  any  court 
of  the  United  States,  or  of  any  state  or  territory  of  the 
United  States,"  can  only  be  commenced  within  five  years ; 
but  section  4364  of  the  same  laws  provides  that  if,  after  a 
cause  of  action  shall  have  accrued  against  a  person,  he  de- 
part the  State,  the  time  of  his  absence  shall  not  be  part  of 
the  time  limited  for  the  commencement  of  the  action.  Sec- 
tion 19  of  the  code  of  civil  procedure,  laws  of  Wyoming, 
1873,  makes  the  provisions  of  the  laws  of  California  cited 
applicable  in  this  case. 

The  supreme  court  of  California  in  the  case  of  Mahan  v. 
Cronin,  20  Cal.  211,  held  that  the  portion  of  said  section 
4359  cited  was  applicable  to  judgments  recovered  in  the 
state  of  California.  It  cannot  be  contended  under  the  evi- 
dence in  the  trial  of  the  case  in  the  court  below,  that  the 
defendant  Price  was  in  the  state  of  California  between  the 
time  of  the  rendition  of  the  judgment  and  the  commence- 
ment of  this  action  in  the  district  court  for  the  period  of 
five  years,  or  for  periods  of  time  that  would  aggregate  five 
years. 

It  is  true  that  it  is  shown  that  his  absence  was  caused  by 
his  being  employed  in  the  military  service  of  the  United 
States,  and  the  court  is  referred  to  section  4,  art.  2,  and  sec- 
tion 19,  art.  11,  of  the  constitution  of  the  state  of  California. 
The  first  of  the  references  provides  that  for  the  purpose  of 
voting  no  person  shall  be  deemed  to  have  gained  or  lost  a 
residence  by  reason  of  his  employment  in  the  service  of  the 
United  States,  and  the  second  reference  provides  that  ab- 
sence from  the  state,  on  business  of  the  state  or  of  the 


234  BotfKtFiELD  v.  PRICE.  [Sup.  Ot. 

Opinion  of  the  Court — Carey,  J. 

United  States,  shall  not  affect  the  question  of  residence  of 
any  person. 

We  cannot  see  how  these  constitutional  provisions  affect 
the  question.  It  is  not  a  question  of  political  rights,  nor  of 
residence,  but  a  question  of  presence  in  or  absence  from  the 
state,  and  the  provisions  of  the  constitution  cited  have  no 
reference  whatever  to  the  statutes  of  limitation  under  con- 
sideration. To  obtain  the  advantage  of  the  statutes  of  lim- 
itation of  California,  one  need  not  be  a  resident  of  the  state, 
but  it  is  necessary  for  him  to  be  in  the  state,  and  subject  to 
the  process  of  the  courts,  for  the  time  limited  in  the  statutes. 
Nor  does  the  being  a  resident  and  citizen  of  the  state  give 
such  resident  and  citizen  any  advantage  under  the  statute  of 
limitation  not  possessed  by  the  non-resident.  If  a  resident 
or  non-resident,  after  the  right  of  action  has  accrued  against 
him,  leave  the  state,  the  statute  of  limitation  ceases  to  run 
until  his  return  to  the  State. 

Reference  is  made  to  the  case  of  Brown  v.  Crowny,  30  Cal. 
621,  and  Mouse  v.  McAfee,  but  both  of  these  cases  have  ref- 
erence to  the  time  in  which  execution  may  issue  to  enforce 
a  judgment  in  the  state  of  California,  concerning  which  no 
question  is  raised  in  this  case. 

The  remaining  question  presented  for  the  determination 
of  this  court  is,  was  the  action  barred  by  the  previous  ac- 
tion and  judgment  (case  Bonnifield  v.  Price,  decided  at  the 
last  term  of  this  court)  ?  We  are  of  the  opinion  that  the  ac- 
tion and  judgment  in  the  previous  case  were  properly  held 
by  the  district  court  not  to  be  a  bar  to  this  action.  It  is 
true  the  previous  suit  was  commenced  on  the  same  judg- 
ment as  the  case  under  consideration,  but  it  appeared  upon 
the  face  of  the  petition  in  the  previous  action  that  the  ac- 
tion was  barred  by  the  statute  of  limitations.  This  defect 
in  the  petition  was  taken  advantage  of  by  a  demurrer,  and 
judgment  was  rendered  on  the  demurrer.  In  the  case  at  bar 
the  petition  contained  an  averment  showing  that  the  action 
was  not  barred  by  the  statute  of  limitations. 

No  one  of  the  questions  presented  in  the  previous  case 


March,  1875. J  BOSWELL  v.  COUNTY  COMMISSIONERS.      235 


Statement  of  Facts. 


was  again  adjudicated  in  the  case  at  bar,  nor  was  the  case 
in  the  previous  action  determined  upon  its  merits.  A  judg- 
ment on  a  demurrer  to  a  petition  is  only  conclusive  of  those 
questions  necessarily  determined  by  such  demurrer.  The 
effect  of  the  judgment  and  the  demurrer  was  merely  to  de- 
termine that  the  petition  in  the  former  action  did  not  state 
sufficient  facts  to  constitute  a  cause  of  action.  In  the  action 
at  bar  the  petition  does  state  facts  sufficient  to  constitute  a 
cause  of  action,  and  the  plaintiff  was  not  estopped  from 
prosecuting  the  action  by  the  previous  action  and  judgment. 
Judgment  of  the  district  court  reversed  and  cause  re- 
manded for  new  trial. 


BOSWELL  v.  THE  BOARD  OF  COUNTY  COMMIS- 
SIONERS OF  ALBANY  COUNTY. 

APPEAL  FROM  COUNTY  COMMISSIONERS. — The  statutes  of  Wyoming 
providing  for  appeals  from  decisions  of  the  boards  of  county  com- 
missioners to  the  district  court,  refer  only  to  cases  first  presented 
to  such  boards  for  adjustment  and  payment. 

IDEM.: — A  person  having  a  claim  against  a  county,  is  not,  by  reason  of 
those  statutes,  prevented  from  bringing  an  original  action  to  re- 
cover the  same  in  the  district  court. 

IDEM. — He  is  entitled  to  a  choice  of  remedies. 

ERROR  to  the  Second  District  Court  for  Albany  County. 

The  plaintiff  in  error  on  the  fourth  day  of  August,  1873, 
filed  in  the  district  court  of  the  then  first,  now  second, 
judicial  district,  sitting  within  and  for  the  county  of  Albany, 
Wyoming  territory,  his  petition,  and  on  the  fifth  day  of  Sep- 
tember his  amended  petition  against  the  board  of  county 
commissioners,  alleging,  that  plaintiff  was  the  sheriff  of  Al- 
bany county  and  keeper  of  the  common  jail  thereof;  that 
said  defendant  was  indebted  to  plaintiff  for  the  board  of 
prisoners,  in  the  sum  of  one  thousand  six  hundred  and  eighty 
dollars  and  forty- four  cents  ;  that  an  itemized  statement  of 


236  BOSWELL  v.  COUN.TY  COMMISSIONERS.  [Sup.  Ct. 


Argument  for  Plaintiff  in  Error. 


account,  duly  authenticated  as  by  law  required,  was  pre- 
sented to  the  then  board  of  county  commissioners,  and  the 
said  board  refused  to  allow  the  same. 

To  such  amended  petition  the  defendant  interposed  a  de- 
murrer, and  for  grounds  of  the  same  alleged :  That  the 
court  had  no  jurisdiction  over  the  subject-matter  of  the 
action  because  the  plaintiff  did  not  appeal  from  the  decision 
of  the  board  of  commissioners  ;  and,  as  another  ground : 
That  the  court  has  no  jurisdiction  over  the  persons  of  the 
defendant,  because  suit  was  brought  here  on  petition  and 
summons  instead  of  by  appeal  from  county  commissioners. 
On  these  two  grounds  the  court  sustained  the  demurrer. 
To  this  ruling  of  the  court  the  plaintiff  then  and  there  ex- 
cepted. 

M.  C.  Brown,  for  plaintiff  in  error : 

I.  It  appears  that  the  court  sustained  the  said  demurrer 
on  the  ground  that  the  plaintiff  could  only  sustain  his  action 
by  appeal  from  the  decision  of  the  board  of  county  com- 
missioners :  Laws  Wyoming  1869, 150, 151.  The  court  erred 
in  sustaining  the  said  demurrer,  because  the  said  statute  be- 
fore referred  to  is  unconstitutional  and  void :  Organic  Act, 
sec.  9.  Appeals  only  lie  from  one  court  to  another,  from 
courts  of  an  inferior  jurisdiction  to  higher  courts :  1  Bouv. 
127  ;  14  Mass.  414.  A  court  is  a  body  having  judicial  power; 
"  a  place  where  justice  is  judicially  administered  :  "  Coke 
Litt.  58,  note  8.  The  board  of  county  commissioners  is 
not  a  court,  and  is  not  vested  with  judicial  power :  Laws  of 
Wyoming,  146.  That  such  a  body  cannot  be  vested  with 
judicial  power:  Organic  Act,  sec.  9.  The  construction  of 
statutes  as  to  corporate  powers — that  they  must  be  strictly 
construed :  See  2  Kent,  298 ;  19  Iowa,  212 ;  6  Indiana,  403. 
The  statutes  creating  the  board  of  county  commissioners 
provides  that  said  board  may  sue  and  be  sued:  Laws  of  Wy- 
oming, 146,  147.  There  is  no  provision  of  our  statute  for 
maintaining  an  action  against  a  court,  nor  does  any  such 
power  exist  at  common  law.  In  this  case  it  is  an  under 


March,  1875.]  BOSWELL  v.  COUNTY  COMMISSIONERS.      237 

Argument  for  Defendants  in  Error. 

taking  by  a  party  to  the  suit  to  sit  in  judgment  in  its  own 
behalf.  The  demurrer  can  only  be  sustained  on  the  ground 
that  the  act  of  the  board  of  county  commissioners  in  pass- 
ing upon  the  bill  was  a  judicial  determination  of  the  matter, 
and  then  judgment  final,  unless  appealed  from,  and  a  bar  to 
this  action:  1  Bouv.  372.  What  are  judgments?  1  Bouv. 
760  et  seq. 

II.  If  the  act  of  the  legislature  of  1869  confers  on  the 
commissioners  judicial  power,  and  creates  thereby  a  court, 
it  is  a  court  of  inferior  jurisdiction  to  the  district  court ; 
there  is  no  limit  to  its  jurisdiction  as  to  the  amount  in: 
volved.  There  are  three  judges  to  sit  in  judgment.  If  it 
is  not  an  inferior  court,  appeal  will  not  lie :  14  Mass.  414. 
The  statutes  of  1869  provide  that  an  appeal  may  be  taken 
from  commissioners  to  the  district  court,  but  it  is  not  the 
only  way. 

C.  W.  Sramel,  for  defendants  in  error. 

The  defendants  in  error  rely  upon  the  following  general 
principles  which  it  believes  applicable  to  cases  of  this  char- 
acter, the  construction  of  statutes  and  powers  of  civil  or 
quasi  corporations  : 

I.  A  county  is  not  a  corporation,   but  a  mere  political 
organization  of  certain  of  the    territory  within    the  state, 
particularly  defined  by  geographical    limits     for  the  more 
convenient  administration  of  the  laws  and  police  powers  of 
the  state,  and  for  the  convenience  of  the  inhabitants.     Such 
organization  is  invested  with  certain  powers,  delegated  to 
it  by  the  state, 'for  the  purpose  of  civil  administration,  and 
for  the  same  purpose  it  is  clothed  with  many  characteristics 
of  a  body  corporate. 

II.  A   county  may  not  improperly  be  called  a  quasi  cor- 
poration, for  it  is  in  many  respects  like  a  corporation. 

III.  But  a  county  can  neither  sue  nor  be  sued,  except 
by  express  power  conferred  by  statute,  and  in  the  manner 
so  expressed. 


238  BOSWELL  v.  COUNTY  COMMISSIONERS.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

VI.  Nor  can  any  of  the  officers  of  a  county,  by  virtue  of 
such  office,  sue  or  be  sued,  except  as  provided  by  statute. 

It  follows,  therefore,  that  the  only  powers  to  sue,  pos- 
sessed by  the  board  of  county  commissioners,  is  conferred 
upon  them  by  statute.  When  a  claim  against  a  county  is 
created  by  statute  and  is  to  be  paid  by  the  county,  upon  the 
allowance  of  the  county  commissioners,  if  the  claim  is  dis- 
allowed in  part  by  the  county  commissioners,  the  remedy  of 
the  claimant,  if  not  satisfied  with  the  determination  by  the 
commissioners,  is  to  appeal  to  the  district  court,  and  in 
such  a  case  he  cannot  sue  at  common  law:  8  Ohio  St. 
354 ;  5  Ohio,  490  ;  13  Ohio  St.  388.  And  such  statute  is 
not  repugnant  to  the  constitution  of  the  United  States  and 
the  organic  act  of  the  territory :  Dillon  on  Mun.  Corp.  55, 
note  2;  1  Ohio  St.  437.  1.  Because  such  appeal  saves 
to  the  party  aggrieved  his  constitutional  right  to  a  jury 
trial :  Dillon  on  Mun.  Corp.  361  ;  Cooley  Const.  Limita- 
tions, 410.  2.  In  this  connection,  defendants  in  error  also 
cite  :  18  Wallace  U.  S.  648. 

By  Court,  THOMAS,  J.  This  cause  is  brought  by  writ  of 
error  from  the  district  court  of  the  second  judicial  district 
for  the  county  of  Albany  to  reverse  a  decision  sustaining 
the  defendant's  demurrer  to  the  plaintiff's  petition  herein. 

The  petition  in  the  district  court  alleges  that  the  plaintiff 
was  on  and  before  January  1,  A.  D.  1870,  and  for  some  time 
thereafter,  sheriff  of  Albany  county,  Wyoming  territory, 
and  the  keeper  of  the  common  jail  of  the  same  ;  that  as ' 
such  keeper  the  county  became  indebted  to  him  in  the  sum 
of  one  thousand  six  hundred  and  eighty  dollars  and  forty- 
four  cents  for  the  care  and  maintenance  of  prisoners  con- 
fined in  said  county  jail,  and  that  an  itemized  account  duly 
verified  was  presented  to  the  then  board  of  county  com- 
missioners, and  the  said  board  refused  to  allow  the  same. 
To  that  petition  the  defendant  interposed  a  demurrer  upon 
the  following  grounds  : 

1.  That  the  court  had  no  jurisdiction  over  the  subject- 


March,  1875.]  BOSWKLL  v.  COUNTY  COMMISSIONERS.      239 

Opinion  of  the  Court — Thomas,  J. 

matter  of  the  action,  because  the  plaintiff  did  not  appeal 
from  the  decision  of  the  board  of  county  commissioners. 

2.  That  the  court  had  no  jurisdiction  over  the  persons  of 
the  defendants,  because  suit  was  brought  in  the  district 
court  on  petition  and  summons,  instead  of  the  appeal  from 
the  decision  of  the  board.  The  demurrer  was  sustained. 
The  only  question  in  this  case  arises  from  the  provisions  of 
the  laws  of  the  territory  of  Wyoming  (Laws  of  1869,  150- 
151),  which  are  to  the  effect  that  when  the  claim  of  any  per- 
son against  a  county  shall  be  disallowed  by  the  county  com- 
missioners, such  person  may  appeal  from  the  decision  of 
said  board  by  causing  a  written  notice  of  such  appeal  to  be 
served  on  the  clerk  and  chairman  of  the  board  within  ten 
days  after  the  rendering  of  such  decision,  upon  the  appel- 
lant filing  the  bond,  etc.,  etc. 

It  is  urged  upon  the  part  of  the  plaintiff  in  error  that 
this  law  is  invalid,  for  the  reason  that  if  its  effect  is  what 
it  is  claimed  to  be  by  the  defendants  in  error,  it  would  de- 
prive a  party  of  the  constitutional  right  of  a  jury  trial.  It 
is,  however,  unnecessary  to  pass  upon  that  question,  as  it  is 
apparent  that  the  statute  referred  to  only  provides  a  remedy 
for  those  whose  claims  have  been  disallowed  by  a  board  of 
county  commissioners,  which  may  be  a  more  expeditious 
and  less  expensive  method  of  procedure  than  the  ordinary 
mode  of  procedure,  but  in  no  wise  prevents  a  claimant  from 
pursuing  the  usual  course  for  collecting  claims,  if  he  shall 
deem  the  same  to  be  best. 

The  decision  of  the  district  court  is  reversed,  and  the 
case  remanded  for  further  proceedings. 


BATH  v.  LINDENMYEE.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 


BATH  ET  AL.  v.  LINDENMYER. 

ESTOPPEL — PLEA  IN  BAB. — Defendant  in  error  sued  the  plaintiff  in 
error  for  one  year's  rent  of  certain  real  estate.  Upon  the  trial  it 
appeared  that  the  year  had  not  expired,  and  that  only  a  portion  of 
the  rent  was  due,  and  the  court  ordered  judgment  for  that  amount 
only.  Suit  was  subsequently  commenced  between  the  same  parties 
for  the  remainder:  Held,  that  the  judgment  in  the  first  case,  al- 
though the -petition  therein  prayed  for  all  the  rent,  was  no  bar  to 
the  prosecution  of  the  second  suit. 

ERROR  to  the  Second  District  Court  for  Albany  County. 
The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
T.  J.  Street  and  S.  W.  Downey,  for  plaintiff  in  error : 

The  errors  we  rely  on  are  shown  by  a  motion  for  a  new 
trial,  and  are  substantially :  1.  That  in  this  trial  the  court 
erred  in  giving  to  the  jury  the  instructions  to  the  effect  that 
the  claim  of  the  defendant  in  error  had  not  been  adjudi- 
cated ;  2.  That  the  court  erred  in  refusing  to  give  to  the  jury 
the  instruction  requested  by  the  plaintiffs  in  error,  to  the 
effect  that  the  claim  had  been  adjudicated,  and  that  the  de- 
fendant in  error  was  hereby  estopped  from  recovering  in 
his  action;  and,  3.  That  the  court  erred  in  overruling  the 
motion  for  a  new  trial. 

It  will  be  observed  that  the  action  in  this  case  is  based 
upon  a  written  lease — that  a  previous  judgment  had  been 
rendered  thereon — that  the  defendant  in  error  moved  for  a 
new  trial  in  that  action,  which  was  overruled,  and  the  de- 
fendant in  error  did  not  except,  but  filed  a  bill  of  excep- 
tions to  instructions  given,  and  no  further  action  was 
taken  by  the  defendant  in  error  (except  after  the  motion 
for  new  trial  made  by  him  was  overruled)  to  move  for  judg- 
ment on  the  verdict,  which  was  granted.  We  have,  there- 
fore, the  strange  legal  anomaly  presented  in  a  twofold  form 
of  a  party  seeking  to  evade  the  law  of  estoppel :  1.  Trying 
to  recover  a  second  time  in  an  action  involving  like  issues 


March,  1875.]         BATH  v.  LINDENMYEB.  241 

Argument  for  Defendant  in  Error. 

upon  the  same  obligation-;  and,  2.  Seeking  to  recover  judg- 
ment in  a  new  action  upon  the  same  instrument,  after  waiv- 
ing the  objections  in  the  first  action  by  reaping  the  benefits 
thereof,  in  taking  judgment  against  his  own  motion.  Com- 
ment or  citation  of  authorities  would  seem  superfluous,  but 
see  the  case  of  Doe  v.  Oliver,  and  the  Duchess  of  Kingston's 
case,  2  Smith's  Lead.  Gas.,  and  authorities  there  cited  on  the 
law  o£  estoppel.  Reference  is  also  made  to  the  laws  of 
Wyoming,  1873,  ch.  1 ;  and  Bigelow  on  Estoppel,  ch.  3,  and 
cases  cited. 

M.  0.  Brown,  for  defendant  in  error: 

It  is  believed  by  the  defendant  in  error  that  the  error 
chiefly  relied  upon  in  this  case,  by  plaintiffs  in  error,  is  as 
to  the  ruling  of  the  court  in  permitting  evidence  to  be  intro- 
duced, and  in  charging  the  jury  in  the  matter  of  the  two 
and  a  half  months'  rent  before  referred  to.  The  ruling  and 
instruction  of  the  court  was  manifestly  correct,  because  if 
part  of  a  plaintiff's  claim  is  ruled  out,  for  the  reason  it  was 
premature  and  not  admissible  at  the  time  under  the  plead- 
ings, it  afterwards  must  be  treated  as  if  it  had  never 
been  included  or  offered  in  the  case :  See  Freeman  on  Judg- 
ments, 234,  sec.  269,  and  cases  there  cited ;  Baker  v.  Rand, 
13  Barb.  152 ;  Harding  v.  Hale,  2  Grey,  399.  This  portion 
of  the  claim  was  not  involved  in  the  issues  in  the  former 
trial,  being  expressly  excluded  by  the  order  and  instruction 
of  the  court ;  therefore,  the  presentation  of  such  claim  (so 
excluded  in  the  former  trial)  at  this  time  in  this  case,  can- 
not be  considered  res  adjudicata :  Freeman  on  Judg.  234, 
sec.  269. 

Had  the  court  in  the  former  trial  the  right  to  exclude  a 
portion  of  the  claim  sued  on  as  premature  and  not  yet  due  ? 
That  such  right  existed  see  Freem.  on  Judg.  233 ;  K<nie  v. 
Fisher,  2  Watts,  346 ;  Bull  v.  Hopkins,  7  Johns.  22  ;  6  Cowen, 
261.  It  may  be  claimed  that  while  the  abstract  right  exists 
to  exclude  from  a  case  a  portion  of  claims  not  yet  due,  that 
16 


242  BATH  v.  LINDENMYER.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

this  particular  case  is  one  of  those,  in  which  such  a  division 
and  exclusion  could  not  properly  be  made,  and  that  the  court 
in  the  former  trial  erred  in  its  ruling,  when  excluding  a  por- 
tion of  the  claim  then  sued  on;  on  which  said  portion  so 
excluded  this  suit  is  now  brought.  Was  it  error  of  the  court 
in  the  former  trial  in  so  excluding  portion  of  claim  ?  That 
it  was  not  error,  see  Lease. 

By  Court,  CAREY,  J. :  This  action  was  commenced  on 
May  30,  1873,  by  the  defendant  in  error  (plaintiff  in  the 
district  court)  against  the  plaintiff  in  error  (defendant  in 
the  district  court)  to  recover  the  sum  of  four  hundred  and 
twenty  dollars,  three  months'  rent  claimed  to  be  due  on  the 
first  day  of  May,  1873,  on  a  certain  lease  attached  to  and 
made  a  part  of  the  petition.  The  answer  of  the  plaintiff 
in  error  was  a  plea  in  bar,  in  which  it  was  alleged  that 
the  defendant  in  error  had  theretofore  sued  the  plaintiff 
in  error  in  said  district  court,  in  "  an  action  for  the  same 
debt  as  in  the  declaration  alleged,  and  such  proceedings 
were  had  thereupon  in  that  action  that  the  defendant 
in  error  afterward  by  the  judgment  of  the  court  recov- 
ered against  the  plaintiffs  in  error  two  hundred  and  seventy- 
five  dollars  for  said  debt,  *  *  *  and  the  said  judg- 
ment still  remains  in  force."  On  the  trial  of  the  case  at 
bar,  verdict  was  given  the  defendant  in  error  for  the  sum 

of  ,  and  judgment  rendered  on  the  verdict  by  the 

court. 

The  evidence  on  this  trial,  in  the  district  court,  showed 
that  the  case  at  bar,  and  the  action  and  judgment  plead  in 
estoppel  were  founded  on  the  same  lease ;  the  lease  in  each 
instance  being  made  a  part  of  the  petition.  That  the  fol- 
lowing provisions  among  others  were  contained  in  the  lease, 
viz :  This  lease  commences  to  run  on  to-day,  the  seven- 
teenth day  of  June,  A.  D.  1872,  and  expires  on  the  first  day 
of  May,  A.  D.  1873,  with  the  proviso,  etc.  The  said  Bath  & 
Brother  (of  the  plaintiffs  in  error)  agree  to  pay  as  rent  for 
all  the  property  herein  described,  the  sum  of  one  hundred 


March,  1875.]        BATH  r.  LINDENMYEB.  243 

Opinion  of  the  Court — Carey,  J. 

and  forty  dollars  per  month,  payable  in  advance.  It  is 
further  understood  and  agreed,  that  in  case  the  said  City 
Brewery  is  destroyed  by  storm  or  fire,  the  said  Bath  & 
Brother  are  not  to  be  held  for  the  rent  after  that  time. 

The  evidence  also  showed,  that  the  action  in  which  the 
judgment  plead  in  estoppel  was  recovered,  was  commenced 
on  the  thirty-fii-st  day  of  January,  1873,  or  three  months  be- 
fore the  time  stipulated  in  the  lease  for  the  same  to  expire, 
that  the  said  action  was  brought  to  recover  for  the  whole  time 
that  the  lease  by  its  terms  was  to  run,  namely,  from  June 
17,  1872,  to  May  1,  1873,  ten  and  one  half  months,  and 
that  the  judge  before  whom  the  case  was  tried,  being  called 
upon  to  construe  the  lease,  instructed  the  jury :  "  That  it 
was  the  intention  of  the  parties  thereto  that  the  rent  men- 
tioned therein  should  be  due  and  payabl^,  monthly  in  ad- 
vance, and  that  under  the  terms  of  said  lease  the  rent 
became  due  on  the  seventeenth  day  of  each  month.  That  the 
jury  could  only  find  for  the  rent  that  had  become  due  at 
the  time  of  the  commencement  of  the  suit." 

The  judge,  in  the  case  at  bar,  instructed  the  jury  that 
"  there  is  no  evidence  submitted  in  the  trial  of  this  cause  to 
show  that  the  claim  upon  which  the  plaintiff  sues  has  ever 
been  adjudicated.  The  jury  will,  therefore,  find  for  the 
plaintiff  and  assess  his  damage  at  such  amount  as  the  jury 
find  him  entitled  to  under  the  evidence."  *  *  And  the 
judge,  on  motion  of  the  plaintiffs  in  error,  refused  to  give 
the  following  instructions,  to  wit:  "That  the  debt  sued 
upon  by  the  plaintiff  had  been  adjudicated  as  alleged  in  the 
plaintiff's  answer  and  shown  by  the  proof  on  the  trial,  and 
that  the  plaintiff  was  for  that  reason  not  entitled  to  recover 
in  this  action. 

The  giving  of  said  instructions  and  refusal  to  give  the 
instructions  requested  by  the  plaintiff  in  error,  are  assigned 
as  error.  We  cannot  see  how  the  previous  action  and  re- 
covery can  be  considered  a  bar  in  this  action.  The  con- 
struction put  upon  the  lease  by  the  district  court  in  each 
instance  we  consider  proper  and  correct.  It  is  true  that 


244  BATH  v.  LINDBNMYER.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

the  rent  claimed  in  the  petition  of  the  defendant  in  error 
was  included  in  his  petition  in  the  previous  action,  but  it  is 
found  from  the  record  of  the  previous  action  offered  in  evi- 
dence, that  the  rent  sued  for  in  this  action  was  not  due  at 
the  commencement  of  the  previous  action,  and  that  the  judge 
before  whom  such  previous  action  was  tried,  expressly  in- 
structed the  jury  that  they  should  not,  in  making  up  a  ver- 
dict take  into  consideration  any  rent  falling  due  on  the  lease 
after  the  institution  of  the  suit.  In  the  absence  of  any  tiling 
to  show  to  the  contrary,  and  since  the  plaintiff  in  error  in  the 
previous  action  took  no  exception  to  the  verdict  of  the  jury,  it 
would  be  a  violent  presumption  for  this  court  to  conclude  that 
the  jury  did  consider  that  which  the  court  ruled  should  not 
be  considered  by  them.  At  the  time  the  former  suit  was  in- 
stituted only  a  portion  of  the  rent  was  due,  and  the  court 
gave  the  jury  to  understand  what  that  portion  was.  We 
know  of  no  rule  that  would  make  the  previous  recovery  a 
bar  in  this.  It  would  be  highly  unjust  to  the  defendants  in 
error  to  hold  that  by  their  recovery  of  certain  money  in  the 
previous  action  they  are  now  barred  from  recovering  that 
which  since  has  become  due  and  was  rejected  in  the  previous 
action  because  it  was  not  due.  Similar  questions  to  the  one 
presented  in  this  case  have  frequently  been  decided,  and  the 
cases  of  Kane  v.  Fisher,  2  Watts,  246  (Prince,  R.)  ;  and  Bull 
v.  Hopkins,  7  Johns.  22  (N.  Y.),  are  directly  in  point. 
Judgment  of  the  district  court  affirmed. 


March,  1875.]         BONNIFIELD  v.  PRICE.  245 

Opinion  of  the  Court — Thomas,  J. 


BONNIFIELD  v.  PRICE. 

APPEAL — PRACTICE. — If  an  error  is  committed  by  the  supreme  court 
of  the  territory,  the  party  believing  he  has  sustained  injury  there- 
by has,  of  course,  hip  right  to  appeal  to  the  supreme  court  of  the 
United  States;  but  for  an  alleged  error  in  judgment  of  the  court  a 
party  cannot  have  a  former  decision  of  the  court  reversed  on  a 
mere  motion. 

IDEM. — A  motion  to  vacate  a  former  decision  will  not  be  granted  if  it 
is  founded  upon  some  question  which  was  raised  or  could  have 
been  raised  on  the  argument  of  the  cause. 

MOTION  to  vacate  order  reversing  judgment  of  District 
Court  in  and  for  Laramie  County. 

This  cause  was  argued  and  submitted  at  the  March  term, 
A.  D.  1875,  of  this  court.  During  the  same  term  an  opinion 
herein  was  filed  and  an  order  entered  reversing  the  judg- 
ment of  the  district  court.  A  motion  is  now  made  by  the 
appellees  to  vacate  such  judgment  or  order  for  the  reason 
of  certain  errors  of  judgment  alleged  to  have  been  committed 
by  this  court  in  arriving  at  such  decision. 

E.  P.  Johnson,  for  plaintiff. 

D.  M.  McLaughlin,  for  defendant. 

By  the  Court,  THOMAS,  J. :  There  is  no  question  brought 
up  by  this  motion  but  what  was  raised  or  could  have  been 
raised  upon  the  argument  of  the  appeal  in  the  first  instance 
before  the  supreme  court.  For  if  this  court  passed  upon 
the  issues  in  the  cause,  as  alleged  on  this  motion,  raised  by 
the  amended  petition  herein  it  must  either  have  considered 
the  whole  matter  fully  as  connected  with  such  amendment, 
or  else  the  counsel  for  the  defendants  and  appellees  failed  to 
raise  the  question  upon  the  argument  of  this  cause  of  the 
right  of  the  district  court  to  allow  the  amendment  of  the 
petition  at  the  time  stated  in  these  motion  papers. 

Therefore,  if  in  the  first  place  the  court  erred  in  its  de- 
cision, it  is  clear  that  the  only  course  for  the  appellees  in  this 


246  FEIN  v.  THE  UNITED  STATES.          [Sup.  Ct. 


Statement  of  Facts. 


case  to  pursue  would  be  by  appeal  to  a  higher  tribunal,  and 
not  by  a  motion,  the  purpose  of  which  is  to  induce  this  court 
to  reverse  its  own  decisions  after  a  final  hearing,  or  to  hear 
a  matter  in  the  nature  of  an  appeal  from  its  own  judgments. 

2.  If,  upon  the  argument  of  the  appeal  herein  before  the 
supreme  court,  the  counsel  for  the  appellees  failed  to  raise 
the  question  of  the  right  of  the  court  below  to  grant  an 
amendment  of  the  petition  at  the  time  in  the  proceedings 
stated,  he  is  certainly  precluded  by  the  rules  of  practice 
from  raising  the  question  or  other  questions  affected  thereby 
after  the  case  has  been  submitted  on  argument,  or  in  the 
manner  now  attempted  by  him. 

The  motion  is  overruled. 


FEIN  v.  THE  UNITED  STATES. 

CRIMINAL  PROCEDURE. — An  indictment  having  been  found  against  the 
plaintiff  in  error  under  the  section  of  the  U.  S.  statutes  which  pro- 
vides: "And  any  brewer  who  shall  neglect  to  keep  books,  *  *  * 
shall  for  every  such  neglect  forfeit  and  pay  the  sum  of  three  hun- 
dred dollars: "  Held,  on  the  hearing  of  the  cause  in  this  court,  that 
the  prosecution  should  have  proceeded  by  civil  action,  and  not  by 
indictment. 

ERROR  to  the  Second  District  Court. 

This  cause  came  on  for  trial  in  the  district  court  of  the 
second  judicial  district,  upon  an  indictment  against  John 
J.  Fein,  charging  him  with  having  violated  the  revenue  laws 
of  the  United  States  by  a  failure  to  keep  certain  books  cor- 
rectly, that  by  said  revenue  laws  all  brewers  are  required  to 
keep. 

The  defendant  demurred  to  the  indictment,  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  an  offense 
punishable  by  the  laws  of  the  United  States.  The  demurrer 
was  overruled,  and  the  defendant  entered  a  plea  of  not 


March,  1875.]  FEIN  v.  THE  UNITED  STATES.  247 


Argument  for  Plaintiff  in  Error. 


guilty.  The  cause  was  tried,  a  verdict  of  guilty  returned, 
and  Fein  was  sentenced  by  the  court  to  pay  a  fine  of  three 
hundred  dollars. 

The  errors  relied  on  by  counsel  for  plaintiff  in  error  were : 
1.  Overruling  the  demurrer;  2.  The  refusal  of  the  court  to 
permit  the  prisoner  to  testify  in  his  own  behalf. 

M.  0.  Brown,  for  plaintiff  in  error : 

I.  Overruling  defendant's  demurrer  to  the  indictment. 

II.  The  refusal  by  the  court  to  grant  a  new  trial  as  prayed 
for  in  his  said  motion,  and  herewith  the  refusal,  of  the  court 
to  allow  the  defendant,  now  plaintiff  in  error,  to  testify  to 
or  to  make  a  statement  to  the  jury. 

As  to  the  demurrer,  the  court  evidently  erred,  because 
the  statute  of  the  United  States  does  not  declare  the  failure 
to  keep  books,  to  be  either  a  felony  or  a  misdemeanor :  See 
U.  S.  Statute  under  which  indictment  was  found,  p.  104, 
sec.  21  of  Rev.  Law.  The  same  law  provides  that  brewers 
shall  give  a  certain  bond,  one  of  the  conditions  of  which 
said  bond  is,  the  books  referred  to,  to  be  kept  by  law,  shall 
be  correctly  kept,  etc.  :  See  U.  S.  Rev.  Stats,  p.  102,  sec.  17. 
The  law  claimed  to  support  this  indictment  simply  provides 
that  if  brewers  fail  to  keep  certain  books,  etc.,  they  shall 
forfeit  and  pay  the  sum  of  three  hundred  dollars :  See  stat- 
utes before  referred  to. 

It  will  be  seen  the  law  neither  declares  this  act  to  be  a 
crime  or  misdemeanor,  or  fixes  a  fine  to  be  imposed.  There 
is  a  wide  distinction  in  the  meaning  of  the  words,  fine  and 
forfeiture,  used  in  law.  In  criminal  law,  says  Bouvier: 
"  Fine  is  pecuniary  punishment  imposed  by  a  lawful  tribu- 
nal upon  a  person  convicted  of  a  crime  or  misdemeanor :  " 
1  Bouvier's  Law  Die.  589.  It  is  the  end  of  a  suit,  and 
never  imposed  until  after  trial.  A  forfeiture  under  the  Eng- 
lish law,  made  without  trial.  It  is  a  recompense  for  wrong 
that  a  person  or  the  public,  together  with  himself,  hath  sus- 
tained :  2  Black.  267. 


248  FEIN  v.  THE  UNITED  STATES.         [Sup.  Ct. 


Argument  for  Plaintiff  iu  Error. 


Under  article  III,  section  8,  constitution  and  the  laws  of 
the  United  States  (Act  of  1790,  sec.  2-4),  forfeiture  for 
crimes  is  nearly  abolished.  It  will  be  observed  that  while 
the  constitution  enacts  that  "  excessive  fines  "  shall  not  be 
imposed,  there  is  no  such  restrictions  as  to  forfeitures :  See 
Amendment  to  Constitution,  art.  8. 

Again,  it  will  be  observed  that  this  statute  is  enacted  by  the 
United  States  as  a  revenue  law,  and  not  as  a  penal  statute. 
It  is  only  penal  as  to  certain  parts,  and  where  so  clearly 
and  definitely  expressed.  No  crime  can  be  created  by  a 
statute  by  inference,  presumption  or  construction :  Bish. 
Stat.  Grim.  220.  Where  there  is  a  doubt  whether  it  was 
the  intention  of  the  law  maker,  by  the  language  of  the  stat- 
utes to  create  a  crime,  the  party  accused  should  have  the 
benefit  of  the  doubt  :  Bishop's  Grim.  Law,  vol.  1,  sec.  249. 

As  brewers  are  required  to  give  bonds,  and  one  ground 
of  forfeiture  of  bonds  is  a  failure  to  keep  these  books,  can 
it  be  fairly  claimed  that  it  was  the  purpose  of  the  law-mak- 
ing power  to  fix  an  additional  penalty  for  so  simple  an 
offense.  The  bond  stands  as  a  contract  between  the  United 
States  and  Fein  and  his  sureties  ;  if  the  indictment  in  this 
case  is  sustained,  Fein  and  his  sureties  could  be  sued  in  a 
civil  action  on  his  bond,  and  in  addition  to  the  forfeiture  of 
three  hundred  dollars  and  costs  of  this  suit,  he  might  be 
compelled  to  pay  the  penalty  of  the  bond  fixed  at  five  hun- 
dred dollars.  Gertainly  Fein  could  not  plead  the  judgment 
in  a  criminal  prosecution  as  a  bar  to  suit  on  bond.  Clearly 
the  sum  of  eight  hundred  dollars  as  a  fine  or  penalty  for  an 
act  so  trivial  in  itself  would  be  considered  excessive  under 
the  constitution,  and  not  permitted. 

Again  it  will  be  observed  that  the  revenue  law  provides 
that  when  complaint  is  made  to  recover  a  forfeiture  imposed 
by  the  statute  on  information  of  any  person,  the  defendant 
may  testify :  See  U.  S.  Rev.  Law,  sec.  179,  p.  124 ;  also, 
sec.  41,  p.  123.  It  is  true,  this  is  in  a  civil  action,  but  we 
claim  that  a  forfeiture  of  the  character  referred  to  in  the 


March,  1875.]  FEIN  v.  THE  UNITED  STATES.  249 

Opinion  of  the  Court— Carey,  J. 

indictment  can  be  recovered  in  a  civil  action  only,  and  not 
by  indictment  and  criminal  prosecution. 

In  this  action  it  is  attempted  to  recover  a  forfeiture,  and 
where  a  forfeiture  is  to  be  recovered,  the  law  allows  the  de- 
fendant to  testify.  In  his  case,  he  was  not  permitted  to 
testify,  and  we  say  the  ruling  of  the  court  as  to  thus  exclud- 
ing the  defendant,  now  the  plaintiff  in  error,  from  this  priv- 
ilege, was  erroneous,  not  under  the  general  rules  of  crim- 
inal evidence,  but  because  of  the  misapplication  of  the 
law  in  sustaining  the  indictment,  and,  therefore,  applying 
the  rules  of  criminal  evidence  to  this  case,  and  thereby  de- 
prived the  defendant,  now  plaintiff  in  error,  of  this  right 
and  privilege,  clearly  intended  to  be  given  by  the  law  in 
such  case. 

E.  P.  Johnson,  for  defendant  in  error. 

The  errors  relied  on  are:  1.  Overruling  demurrer  to  the 
indictment;  2.  The  refusal  to  permit  defendant  to  testify  or 
make  a  statement  under  the  territorial  law. 

This  law  provides  for  its  violation  a  punishment.  It  need 
not  declare  the  violation  to  be  either  felony  or  misdemeanor. 
The  penalty  may  be  recovered  in  a  civil  action  possibly,  but 
that  does  not  bar  a  criminal  prosecution.  The  remedies  are 
cumulative:  1  Whart.  Cr.  Law,  sec.  10;  15  Wend.  267. 
The  second  error  depends  on  the  first. 

By  the  Court,  CAREY,  J. :  The  plaintiff  in  error  at  the 
August  term  of  the  district  court  of  Albany  county  was  in- 
dicted, tried  and  convicted,  and  sentenced  to  pay  and  for- 
feit to  the  United  States  the  sum  of  three  hundred  dollars 
for  neglecting  to  keep  books  as  a  brewer,  as  is  required  by 
law.  A  number  of  exceptions  to  the  rulings  of  the  court 
below  were  taken,  and  are  assigned  as  error,  but  the  only 
question  relied  upon  by  the  plaintiff  in  error  is,  whether  an 
indictment  is  the  proper  proceeding  to  recover  the  forfeiture 
to  which  the  plaintiff  in  error  will  be  subjected  if  the  judg- 


250  FEIN  v.  THE  UNITED  STATES.          [Sup.  Ct. 


Opinion  of  the  Court — Carey,  J. 


ment  of  the  district  court  is  permitted  to  stand.  Section  ' 
19  of  the  act  of  June  6,  1872,  Internal  Revenue  Laws,  com- 
pilation of  1873,  pages  103  and  104,  provides  that  brewers, 
among  other  things,  keep  certain  books.  Section  21  of 
same  act  referring  to  section  19,  provides  that  the  failure 
and  refusal  to  do,  or  cause  to  be  done,  any  of  the  things 
required  by  law,  shall  subject  the  offender  to  the  forfeiture 
of  all  the  liquors,  utensils,  etc.,  us.ed  in  making  the  same, 
and  make  him  liable  to  a  penalty  not  less  than  five  hundred 
dollars,  nor  more  than  one  thousand  dollars,  to  be  recov- 
ered with  costs  of  suit,  and  such  offender  shall  be  guilty  of 
a  misdemeanor,  and  shall  be  imprisoned  for  a  term  not  ex- 
ceeding one  year.  An  additional  sentence  of  said  section 
provides :  "  And  any  brewer  who  shall  neglect  to  keep 
books,  *  *  *  shall,  for  every  such  neglect,  forfeit  and 
pay  the  sum  of  three  hundred  dollars."  It  is  admitted  that 
it  was  under  this  sentence  of  the  section  that  the  plaintiff  in 
error  was  indicted,  tried  and  convicted,  and  sentenced  to  pay 
the  forfeiture. 

While  we  are  of  the  opinion  that  under  the  said  sections 
19  and  21  it  is  a  misdemeanor  for  a  brewer  to  neglect  to 
keep  the  books  required  by  said  section  19,  we  are  also  of 
the  opinion  that  on  conviction  for  such  misdemeanor  the  pun- 
ishment inflicted  must  be  imprisonment  for  a  term  not  ex- 
ceeding one  year,  and  that  the  penalties  and  forfeiture  therein 
provided  must  be  recovered,  if  at  all,  in  civil  actions  :  See 
section  179,  page  124,  Internal  Revenue  Compilation,  1873 
(section  9  of  act  of  July  13,  1866). 

Judgment  of  the  district  court  reversed,  and  case  remanded 
for  further  proceedings. 


March,  1875.]  IVLNSON  v.  ALSOP.  251 

Argument  for  Defendant  in  Error. 


IVINSON  v.  ALSOP. 

PRACTICE — PROCEEDINGS  IN  ERROR.— It  is  the  well  established  and  in- 
variable rule  of  the  supreme  court,  that  in  proceedings  before  it  in 
error,  the  record  or  transcript  must  contain  all  the  material  evi- 
dence given  in  the  court  below  and  bearing  upon  any  question  re- 
lied upon  by  the  plaintiff  in  error. 

MOTION  FOR  NEW  TRIAL. — The  record  must  also  show  that  a  motion 
for  a  new  trial  was  made  in  the  court  below,  raising  all  matters  of 
errors  and  exceptions  (upon  which  plaintiffs  in  error  relied),  and 
the  motion  overruled. 

IDEM. — The  evidence  and  motion  for  a  new  trial  must  be  contained  in 
the  bill  of  exceptions.  The  bill  must  be  signed  within  the  time 
limited  by  law.  The  defect  cannot  be  remedied  and  a  motion  to 
strike  the  petition  in  error  from  the  files  and  to  affirm  the  judg- 
ment of  the  district  court  will  be  sustained. 

ERROR  to  the  Second  District  Court  of  Carbon  County. 

This  cause  was  decided  on  a  motion  of  defendant  in  error 
to  strike  the  petition  in  error  from  the  files  and  to  affirm  the 
judgment  of  the  district  court,  for  the  reason  that  fatal  de- 
fects appeared  in  the  record.  A  further  statement  of  the 
case  is  contained  in  the  opinion. 

E.  P.  Johnson,  for  defendant  in  error,  moves  to  affirm  the 
judgment  and  proceedings  of  the  court  below  without  look- 
ing into  the  record  further  than  to  see  that  it  presents  no 
case  for  review  : 

I.  Because  the  petition  in  error  does  not  assign  errors 
and  present  them  for  review  in  the  manner  required  by  law 
and  the  rules  of  this  court.  The  petition  is  unaccompanied 
with  a  transcript  of  the  proceedings  sought  to  be  reviewed. 
After  the  petition  was  filed,  what  purported  to  be  a  tran- 
script was  filed  without  leave,  which  does  not  in  any  manner 
comply  with  the  rules  of  this  court.  The  rules  of  court 
when  adopted  become  part  of  the  law  governing  the  prac- 
tice, which  the  court  is  bound  to  enforce  as  any  other  law. 
In  absence  of  transcript  and  such  transcript  as  is  required, 
judgment  should  be  affirmed  :  Laws  of  Wyoming,  1869,  685, 


252  IVINSON  v.  ALSOP.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

686 ;  Supreme  Court,  Rule  7 ;  Laws  of  1873,  p.  124,  sees. 
685-6 ;  Dunham  v.  Benedict,  1  Green.  74 ;  State  v.  Bond,  2 
Nev.  265. 

II.  All  presumptions  are  in  favor  of  the  correctness  of  the 
proceedings  of  the  court  below.      They  will  be  presumed 
correct  and  right  until  error  is  affirmatively  shown  by  the 
record :  Powell  on  App.  Proc.  125,  sec.  17,  193,  200 ;   Court- 
uright  v.  Staggers,   Ohio  St.  511 ;  Spurs  v.  Fortner,  6  Iowa, 
553  ;  Mackner  v.  Bemer,  1  Green.  157;  Stocktons.  City  of  Bur- 
lington, 4  Green.  84. 

III.  By  reason  of  the  foregoing  premises  it  will  be  seen 
that  the  court  cannot  go  into  the  record  and  review  pro- 
ceedings unless  the  record  contains  all  the  proceedings.     It 
cannot  determine  that  the  court  erred  in  its  instructions,  un- 
less the  evidence  be  presented  to  enable  the  court  to  see 
whether  the  questions  arose  in  the  case  and  whether  cor- 
rectly or  incorrectly  presented.     So  one  instruction  standing 
alone  as  an  abstract  proposition,  may  appear  to  be  erroneous 
without  the  modification  of  the  other  instructions,  and  if  they 
are  not  presented  in  the  record  as  well  as  the  evidence  upon 
which  the  instructions  or  rulings  were  based,  then  the  pre- 
sumption will  be  that  there  was  evidence  to  sustain  it,  or  that 
all  the  instructions  together  correctly  presented  the  law,  hence 
the  necessity  that  the  transcript  contain  the  evidence  and  in- 
structions and  all  of  them.     This  transcript  does  not  embrace 
a  single  word  of  testimony,  or  a  single  instruction  as  given 
by  the  court :  Powell  on  App.  Proc.  125  to  128  inclusive,  142 
and  200 ;  Russell  v.  Ely,  2  Black.  575 ;  Fuller  v.  Rubley,  10 
Grey,  285  ;  Ide  v.  Churchill,  14  Ohio  St.  372 ;    Youmans  v. 
Caldivell,  4  Ohio  St.  72;  Evert  v.  The  State,  14  Ohio,  386; 
1  Neb.  398 ;  44  111.  124 ;  2  Bare.  Dig.  395 ;  1  111.  Dig.  page 
247,  sec.  50  ;  Horton  v.  Peacock,  1  Wyoming. 

IV.  It  is  equally  necessary  that  the  record  should  present 
the  evidence  and  instructions  in  full,  as  well  as  all  questions 
in  dispute,  to   show    the    appellate  court  affirmatively  not 
only  that  error  actually  exists  in  the  record  but  also  that  the 
error  was  material  and  injurious  to  the  party  complaining, 


March,  1875.]  IVINSON  v.  ALSOP.  253 

Opinion  of  the  Court — Thomas,  J. 

for  a  judgment  will  not  be  reversed  simply  because  there  is 
error  in  the  record,  if  upon  a  review  of  the  whole  record  the 
judgment  appeal's  to  be  right  and  just.  The  court  cannot 
determine  whether  the  error  was  injurious  to  the  party  com- 
plaining on  a  review  of  the  whole  record,  unless  the  whole 
record  is  before  the  court  containing  sufficient  of  the  pro- 
ceedings to  enable  the  court  to  determine  that  fact:  Nash, 
PI.  and  Pr.  689;  Powell  on  App.  Proc.  189  ;  Courtwriyht  v. 
Staggers,  15  Ohio  St.  511 ;  Spurs  v.  Partner,  6  Iowa,  553 ; 
McDougal  v.  Flemming,  4  Ohio,  388. 

J.  W.  Kingman  and  W.   W.  Corlett,  for  plaintiff  in  error. 

By  the  Court,  THOMAS,  J. :  This  is  an  action  in  replevin 
brought  by  said  Ivinson  against  said  Alsop,  in  the  district 
court  of  the  second  judicial  district  of  the  territory  of  Wy- 
oming, sitting  for  the  county  of  Albany,  to  recover  the  pos- 
session of  four  hundred  head  of  cattle  and  one  hundred  and 
forty  head  of  horses,  all  of  the  alleged  value  in  the  aggre- 
gate of  the  sum  of  ten  thousand  dollars. 

The  amended  answer  of  the  defendant  contains  a  denial 
of  the  wrongful  detention  of  said  property,  and  averments 
that  said  property  belonged  to  the  defendant  as  assignee  in 
bankruptcy  of  the  estate  of  the  late  firm  of  II.  Latham  & 
Co.,  and  that  as  such  assignee  he  had  sustained  damage  to 
the  amount  of  ten  thousand  dollars  by  reason  of  the  seizure 
of  said  property  under  the  writ  of  replevin  herein.  The 
venue  was  changed  by  an  order  of  court  on  application  of 
defendant,  from  Albany  county  to  the  county  of  Carbon, 
and  was  tried,  before  Chief  Justice  Fisher  and  a  jury,  De- 
cember 12,  1874. 

The  court  ordered  the  jury  to  find  for  the  defendant,  and 
his  damages  were  assessed  by  said  jury  at  seven  thousand 
three  hundred  and  twenty-nine  dollars  and  seven  cents.  A 
motion  for  a  now  trial  was  then  made  and  overruled  but  was 
not  incorporated  in  the  bill  of  execution,  and  judgment  was 
ordered  upon  said  verdict.  It  is  now  sought  by  the  plain- 


254  IVINSON  v.  ALSOP.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

tiff  to  have  the  case  reviewed  in  this  court  upon  a  writ  of 
error,  while  the  defendant  in  error  moves  to  have  the  judg- 
ment affirmed  for  reasons  of  defects  in  the  record. 

The  record  in  this  case  of  the  proceedings  in  the  court 
below  is  not  sent  to  this  court  in  accordance  with  those 
rules  of  practice  which  have  long  been  settled  and  estab- 
lished. 

1.  The  transcript  or  record  in  this  case  was  made  up  and 
filed  in  violation  of  the  rules  and  decisions  of  this  court  in 
reference  to  practice  therein ;  and  which  are  in.  substance, 
that  all  evidence  to  or  bearing  upon  the  exceptions  relied 
on  by  the  plaintiff  in  error  shall  be  set  out  in  the  record 
fully  and  specifically,  and  if  instructions  of  the  court  are 
complained  of,  the   instructions  and  all  of  the  same  must 
also  be  set  forth  verbatim  et  literatim. 

2.  Rule  V  of  the  supreme  court  of  the  territory  provides 
as  follows :  "  No  case   will  be  heard  in  court  unless  a  mo- 
tion for  a  new  trial  shall  have  been  made  in  the  court  below, 
in  which  all  matters   of  errors   and  exceptions  have  been 
presented,  argued,  and  the  motion   overruled."     In  the  suit 
before  us  the   motion   for  a  new  trial  was  not  incorporated 
in  the  bill  of  exceptions,  and  such  bill  does  not  contain  any 
exception  to  the  order  overruling  the  motion  for  a  new  trial. 

3.  The  record  of  the  district  court  was  not  filed  with  the 
petition  in  error,  but  was  filed  several  days  thereafter  with 
the  clerk  of  the  court,  and   without  the  permission  of  the 
court,  whereas  section  516   of  the   civil  code  of  this  terri- 
tory provides  that:   '"the  plaintiff  in  error  shall  file  with  his 
petition  a  transcript  of  the  proceedings   containing  the  final 
judgment  or  order  sought  to  be   revised,  vacated  or  modi- 
fied."    Permission  was  subsequently  given  the  plaintiff  in 
error  by  the  court  to  have  such  transcript  amended,  but  the 
question  was  then  neither  raised  nor  decided  as  to  the  pro- 
priety of  filing  the  transcript  without   permission  several 
days  after  filing  the  petition  in  error. 

For  the  reasons  above  mentioned,  especially  those  con- 
tained under  the  first  head  of  this  opinion,  it  is  impossible  for 


March,  1875.]  WOLCOTT  v.  FEE.  255 

Argument  for  Plaintiff  in  Error. 

this  court  to  review  in  a  proper  and  intelligent  manner  the 
proceedings  of  the  district  court.  On  many  of  the  impor- 
tant questions  in  the  petition  in  error,  none  of  the  testimony 
of  witnesses  whatever  is  given,  and  on  the  others  the  record 
is  so  defective,  that  although  an  attempt  appears  to  have  been 
made  to  return  the  evidence,  the  court  cannot  fully  or  suffi- 
ciently inform  itself  as  to  the  rulings  and  decisions  of  the 
lower  court  upon  the  points  complained  of  as  error.  Neither 
are  those  portions  of  the  judge's  charge  to  which  exceptions 
are  taken  set  forth  in  accordance  with  the  rules  of  court  nor 
in  a  manner  that  it  can  advisedly  pass  upon  the  same. 
The  judgment  of  the  district  court  is  therefore  affirmed. 


WOLCOTT  v.  FEE. 

PRACTICE  RE  VIVOR. — The  statutes  of  Wyoming  provide  that  the  order  of 
revivor  in  case  of  the  death  of  a  party  shall  be  served  and  returned  the 
same  as  a  summons.  A  different  method  having  been  followed :  Held, 
that  the  statutes  must  be  strictly  and  literally  complied  with. 

ERROR  to  the  District  Court  for  Albany  County. 

The  opinion  of  the  court  contains  a  sufficient  statement 
of  the  case. 

E.  P.  Johnson,  for  plaintiff  in  error,  contended  that  error 
had  been  committed  by  the  district  court  in  the  following 
particulars : 

I.  Overruling  motion  to  set  aside  the  service  of  the  order 
of  revivor.     It  should  be  served  and  returned  as  a  summons  : 
Laws  of  1869,  p.  596,  sec.  457;  Id.  p.  519,  sec.  65;  Nash 
PL  &  Pr.  1189. 

II.  The  court  erred  in  overruling  defendant's  motion  for 
new  trial,  and  in  arrest  judgment  should  not  have   been 


256  WOLCOTT  v.  FEE.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

rendered  on  the  verdict,  for  death  of  plaintiff  abates  the 
action.  The  law  presumes  a  party  deceased  cannot,  or  at 
least  ought  not,  practice  in  mundane  courts ;  hence  the 
abatement.  In  this  case  the  death  of  plaintiff  appeared  on 
the  record.  The  verdict  was  a  nullity.  It  could  not  be 
amended  in  matter  of  substance,  nor  could  a  stranger  be 
brought  into  the  record  by  amending  verdict.  Amend- 
ments to  verdicts,  see  authorities  cited  in  briefs  of  parties : 
Code,  p.  242,  sec.  74 ;  Clark  v.  Irwin,  9  Ohio,  131 ;  Patter- 
son v.  U.  /&,  2  Wheaton,  221 ;  Bellows  v.  Hollowel,  2  Mason, 
31 ;  Sergeant  v.  The  State,  11  Ohio,  472.  The  verdict  was 
not  sustained  by  sufficient  evidence ;  no  personal  responsi- 
bility being  shown :  Story  on  Agency,  sees.  302  to  307,  in- 
clusive. 

III.  The  court  erred  in  rendering  judgment  in  favor  of 
John  Fee.  It  was  not  in  conformity  with  the  verdict:  Laws 
of  1869,  p.  592,  sec.  436;  Powell  on  App.  Pr.,  p.  153,  sees. 
58-9.  Under  the  evidence  and  pleading,  judgment  should 
have  been  for  defendant,  notwithstanding  the  verdict. 

J.  W.  Kingman,  for  defendant  in  error : 

I.  As  to  the  amendment  of  the  verdict  by  changing  the 
name  of  the  defendant :  See  Code  of  1873,  sec.  133. 

II.  As  to  service  of  order  of  notice :  See  Code  of  1873, 
sees.  58,  56,  61.     The  order  is  not  the  summons :  Code  of 
1873,  sees.  54,  56  ;  Court  Rules,  sees.  58,  412,  507 ;  Laws  of 
Wyoming  Territory,  1869. 

III.  The  jury  found  by  direction  of  the  court  that  this 
contract  was  made  with  defendant  personally,  and  not  as 
marshal.      The    evidence    warrants    such  a  finding.      The 
official   character  of  the   defendant  was  not  in   issue,  and 
would  not  avail  as  a  defense  if  it  had  been:  12  Gray,  401 ; 
3  Wallace,  334 ;  2  Kent's  Com.  632-3,  note  a ;    Gill  v.  Brown, 
12  Johns.  385. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  brought 


March,  1875.]  WOLCOTT  v.  FEE.  257 

Opinion  of  the  Court — Fisher,  C.  J. 

to  this  court  by  petition  in  error  from  the  district  court  of 
Albany  county. 

Thomas  Fee,  who  was  plaintiff  below,  brought  his  suit 
in  said  court  for  the  recovery  of  the  sum  claimed  to  be  due 
him  for  work  and  labor  done  at  the  request  of  Frank  Wol- 
cott,  the  defendant,  in  and  about  the  territorial  penitentiary. 
During  the  pendency  of  said  action  Thomas  Fee  died,  and 
letters  of  administration  of  the  estate  of  Thomas  Fee  were 
duly  granted  to  John  Fee.  The  death  of  Thomas  Fee  was 
suggested  by  the  attorney  of  record,  and  it  was  ordered  that 
the  suit  be  revived  in  the  name  of  the  administrator.  A 
notice  of  revivor  was  allowed  by  the  district  court,  which  was 
served  upon  Wolcott,  the  defendant.  At  the  next  term  of 
said  court,  being  the  February  term,  A.  D.  1875,  the  defend- 
ant, by  his  counsel,  appeared  specially  and  moved  to  set 
aside  the  service  of  the  notice  of  revivor,  on  account  of  in- 
formality in  the  service  thereof,  which  motion,  after  argu- 
ment, was  overruled,  and  defendant,  by  his  counsel,  then 
and  there  excepted  to  the  ruling  of  the  court. 

A  jury  was  then  called,  and  the  evidence  of  plaintiff  was 
submitted,  and  the  jury  retired,  without  any  evidence  hav- 
ing been  submitted  on  the  part  of  the  defendant.  The  jury 
returned  a  verdict  in  the  following  words  and  figures,  to  wit : 
"  Thomas  Fee  v.  Frank  Wolcott.  We,  the  jurors,  find  a  ver- 
dict for  plaintiff,  and  assess  the  damages  at  two  hundred  and 
thirty-seven  dollars  ($237).  Laramie,  February  8th,  1875. 
W.  S.  Bramel,  foreman." 

The  defendant  below,  by  his  counsel,  filed  a  motion  in  ar- 
rest of  judgment,  for  the  following  reasons : 

1.  Because  the  verdict  is  not  sustained  by  evidence,  and 
is  contrary  to  law,  and  upon  which  no  judgment  can  be  ren- 
dered. 

2.  Because  the  suit  having  abated  by  the  death  of  Thomas 
Fee,  no  judgment  can  by  the  law  of  the  land  be  rendered  in 
his  favor  or  against  him.     Which  motion  was  overruled  by 
the  court,  to  which  ruling  defendant  excepted. 

Defendant  filed  his  motion  to  set  aside  the  verdict  and 
17 


258  WOLCOTT  v.  FEE.  [Sup.  Gt. 

opinion  of  the  Court — Fisher,  C.  J. 

grant  a  new  trial, ,  for  the  reasons  herein  set  forth:  The  de- 
fect in  the  service  of  the  order  of  revival ;  the  insufficiency 
of  the  verdict.  Which  motion  was  overruled  by  the  court, 
and  exceptions  taken.  The  case  was  then  duly  brought  into 
this  court  upon  the  errors  assigned  in  the  court  below. 

The  record  in  this  case  shows  that  Thomas  Fee  died  dur- 
ing the  pendency  of  the  suit,  and  that  a  motion  was  filed  for 
its  rivival  in  the  name  of  the  administrator.  The  statutes 
of  Wyoming  point  out  the  proper  course  to  proceed  in  the 
happening  of  such  an  event,  viz.,  that  the  notice  of  revjvor 
if  not  made  by  the  consent  of  the  parties,  shall  be  served 
and  returned  in  the  same  manner  as  of  a  summons:  Laws  of 
1869,  596,  sec.  457.  The  manner  of  serving  a  summons  and 
its  return  is  prescribed  in  the  same  book,  519,  sec.  65.  The 
record  in  this  case  shows  that  the  provisions  of  the  sections 
referred  .to  were  totally  uncomplied  with,  henee  there  was  a 
fatal  defect  in  the  service.  The  verdict  of  the  .jury  is  rad- 
ically defective,  and  while  it  possibly  might  have  been 
amended  so  as  to  conform  to  the  facts  proven  under  the 
provisions  of  the  civil  code  of  this  territory,  yet  the  record 
does  not  show  that  any  offer  of  that  kind  was  made.  These 
errors  being  so  apparent,  it  is  not  necessary  to  pass  upon 
the  other  error  assigned,  viz.,  the  insufficiency  of  the  evi- 
dence. 

The  judgment  of  the  district  court  is  reversed  and  a 
venire  facias  de  tiovo  awarded. 


March,  1875.]          RUMSBY  v.  WOLCOTT.  259 

Argument  for  Plaintiff  in  Error. 

RUMSEY  v.  WOLCOTT. 

BANKRUPTCY. — An  employee  of  a  United  States  marshal  cannot  sus- 
tain action  against  such  marshal  personally  for  services  rendered  in 
taking  care  of  a  bankrupt's  estate,  but  should  apply  to  the  court  of 
bankruptcy  for  relief. 

IDKM. — If  the  marshal  fraudulently  refuses  to  payhisagent  for  services 
rendered,  he  (tlie  agent)  may  apply  to  a  court  of  bankruptcy  for 
such  relief  as  he  may  be  entitled  to. 

IDEM. — Where  a  suit  was  commenced  by  an  employee  of  the  U.  S.  mar- 
shal to  recover  compensation  for  taking  charge  of  the  property  of  a 
bankrupt:  Held,  that  a  demurrer  to  the  petition  was  properly  sus- 
tained, on  the  ground  "that  the  court  had  no  jurisdiction  of  the 
person  of  the  defendant  or  the  subject  of  the  action.1' 

ERROR   to  the  District  Court  for  Albany  County. 
The  opinion  contains  a  sufficient  statement  of  this  case. 

J.  W.  King  man,  for  plaintiff  in  error,  contended  that  the 
demurrer  should  have  been  overruled.  The  petition  sets 
out  the  bond  of  defendants,  and  alleges  as  a  breach  the 
refusal  of  the  marshal  to  perform  a  duty  enjoined  and  re- 
quired by  law,  in  consequence  of  which  the  plaintiff  sus- 
tained a  pecuniary  loss:  See  Bump  on  Bankruptcy,  pp.  92, 
199,  451 ;  sec.  40-7,  p.  463 ;  sec.  47,  p.  477  ;  rules  12  and  13. 
It  is  not  necessary  to  sue  the  officer  first  and  the  sureties 
afterwards :  Nash,  189. 

"  The  sureties  of  a  sheriff  are  liable  for  his  tortuous  acts, 
done  under  color  of  his  office:  "  29  U.  S.  Dig.  114,  sec.  34; 
3  Bush,  516.  "  The  sureties  upon  an  official  bond  of  a 
sheriff  guarantee  the  faithful  performance  of  official  duty; 
and  nothing  but  the  faithful  performance  of  official  duty 
can  fulfil  the  condition.  As  long  as  the  obligation  to  pay 
continues  an  official  duty  of  the  officer,  so  long  are  his 
sureties  responsible  for  its  violation  :  State  v.  Allen,  1,2  Ohio, 
59. 

"  For  every  non-feasance  or  misfeasance  in  office,  the 
officer  is  responsible  to  the  party  aggrieved;  and  this  is  the 
liability  to  which  the  sureties  have  undertaken  to  respond: 


260  RUMSEY  v.  WOLCOTT.  [Sup.  Ct. 


Argument  for  Defendant  in  Error. 


State  v.  Blake,  2  Ohio  St.  147 ;   Ohio  v.  Jennings,  4  Id.  418; 
Seney's  Code,  698,  sees.  8,  46,  51. 

E.  P.  Johnson,  for  defendant  in  error. 

This  case  comes  up  from  Albany  county.  Plaintiff  was 
(as  is  alleged)  employed  to  look  after  and  care  for  certain 
cattle  taken  by  Frank  Wolcott  on  a  warrant  in  bankruptcy, 
Wolcott  agreeing  to  pay  what  the  services  were  reasonably 
worth.  Plaintiff  claims  his  services  were  reasonably  worth 
something  over  a  thousand  dollars  (the  amount  is  immate- 
rial), and  brought  suit  to  recover,  not  against  Wolcott,  but 
on  the  official  bond  given  by  Wolcott  as  marshal  of  the  ter- 
ritory, the  other  defendants  being  sureties.  A  demurrer 
was  filed  to  the  petition,  and  also  to  the  amended  petition. 
The  demurrer  to  the  amended  petition  was  sustained,  and 
the  case  brought  here  to  review  that  ruling,  as  no  judg- 
ment has  been  rendered  in  the  case  as  yet.  It  is  submitted 
that  the  demurrer  was  properly  sustained.  An  action  does 
not  lie  on  the  bond  except  at  the  instance  of  some  party 
who  has  suffered  damage  by  reason  of  the  failure  of  the 
marshal  to  perform  some  duty  enjoined  by  law,  or  his  mis- 
feasance in  the  performance  of  such  duty. 

The  petition  fails  to  show  any  non-feasance  or  misfeas- 
ance by  which  Rumsey  became  a  sufferer.  On  the  con- 
trary, it  only  shows  that  Rumsey  is  seeking  to  recover  by 
action  on  the  bond  a  sum  claimed  to  be  due  on  a  simple 
contract  to  perform  services  for  Wolcott. 

An  attempt  is  made  to  show  breach  of  official  duty  by 
reference  to  Bump  on  Bankruptcy,  92-199 ;  451,  sec.  40  d ; 
463,  sec.  47 ;  477,  and  rule  12.  But  the  authorities  fail  to 
show  that  Rumsey  has  any  right  in  the  court  of  bankruptcy, 
or  is  or  can  be  known  to  the  court,  unless  the  court  is 
called  on  by  the  marshal  to  allow  to  him  as  compensation 
out  of  the  estate  whatever  he  may  have  paid  Rumsey  for 
the  care  of  the  property,  and  then  the  court  will  examine 
to  see  if  it  is  reasonable.  The  marshal  may  or  may  not 


March,  1875.]         RUMSEY  v.  WOLCOTT.  261 

Opinion  of  the  Court — Fisher,  C.  J. 

return  the  bill  he  pays  or  becomes  bound  to  pay.  It  is  a 
matter  depending  on  his  own  inclinations  whether  he  will 
pay  the  expense  he  incurs  out  of  his  own  pocket  or  ask  the 
court  to  allow  it  to  him  out  of  the  estate.  He  commits  no 
breach  of  official  duty  if  he  chooses  to  pay  it  himself,  and 
never  trouble  the  court  with  it.  The  question  is  a  simple 
one,  and  settled  by  the  authorities  cited  by  the  plaintiff. 
No  other  questions  arise  that  are  necessary  to  its  decision. 
It  might  be  urged  that  demurrer  was  good  on  the 
ground  that  the  petition  does  not  show  judgment  first 
against  the  .principal,  and  that  execution  was  returned  un- 
satisfied, but  the  first  point  is  decisive  and  disposes  of  the 
case. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  brought 
to  this  court  by  petition  in  error  from  Albany  county,  of 
August  term,  A.  D.  1874. 

Frank  Wolcott,  defendant  in  error,  was  United  States 
marshal  for  the  territory  of  Wyoming,  and  as  such,  and  as 
messenger  in  bankruptcy,  took  into  his  possession  a  cer- 
tain lot  of  cattle  claimed  to  belong  to  the  bankrupt 
estate  of  H.  Latham  &  Co.,  by  virtue  of  certain  proceed- 
ings and  orders  duly  issued  to  him  by  the  supreme  court  of 
said  territory  sitting  as  a  court  in  bankruptcy.  That  the 
said  Wolcott  employed  Henry  R.  Rumsey,  plaintiff  in  error, 
to  take  charge  of  and  agist  said  cattle  from  some  time  in 
the  month  of  January  until  April,  A.  D.  1874.  That  on 
failure  of  Wolcott  to  pay  Rumsey  the  amount  alleged  to  be 
due  for  said  services,  said  Rumsey  brought  suit  against 
the  said  Wolcott,  on  his  official  bond,  including  the  sure- 
ties in  the  action.  The  petition  of  the  plaintiff  in  the 
court  below,  and  plaintiff  in  error  here,  sets  out  the  matters 
above  stated  as  his  cause  of  action. 

The  defendant  in  the  court  below,  by  his  counsel,  filed  a 
general  demurrer,  which  was  sustained  by  court.  The 
plaintiff  brings  his  case  here  by  petition  in  error  and  as- 
signed as  the  only  error  the  sustaining  of  the  defendant's 


262  RUMSEY  v.  WOLCOTT.  [Sup.  Ct. 

Opinion  of  the  Court—Fisher,  C.  J. 

demurrer.  The  question,  therefore,  for  this  court  to  de- 
termine is,  should  the  demurrer  have  been  sustained  ?  The 
plaintiff's  petition;  which  is  a  part  of  the  record  in  this 
case,  shows  that  his  claim' is  for  the  custody  and  agisting  of 
the  cattle  taken  into  custody  of  the  marshal,  and  can  only 
be  allowed  by  the  court  sitting  in  bankruptcy  upon  the 
presentation  in  the  form  of  a  schedule  of  costs  and  expenses 
actually  incurred  and  paid  by  tile  marshal,  and  cannot  be 
allowed  to  his  deputy  or  any  one^else,  unless  in  cases  where 
the  deputy  is  performing  all  the  services  as  marshal,  and 
his  account  is  made  up  accordingly :  See  Bump  on  Bank- 
ruptcy, pages  199  and  468.  And  the  court  cannot  take  into 
consideration  the  account  of  either  the  marshals,  deputies 
or  agents  while  the  marshal  himself  is  present,  and  acting 
or  performing  the  duties  appertaining  to  his  office. 

The  law  gives  no  right  to  any  employee  of  the  officer  to 
present  his  claim  in  person  to  the  court  for  allowance,  hence 
if  the  marshal  employs  an  agent  to  take  property  into  cus- 
tody for  any  other  purpose,  the  agent  accepts  the  trust  at 
the  hands  of  that  officer,  subject  to  his  own  risk,  and  must 
look  to  him  fof  his  compensation.  If  the  marshal  fraudu- 
lently refuses  to  pay  his  agent  for  services  rendered,  he  (the 
agent)  may  apply  to  a  court  of  bankruptcy  for  such  relief  as 
that  court  may  be  able  to  afford  him,  but  even  then  we  con- 
ceive that  it  would  be  in  the  discretion  of  that  court. 

But  we  fail  to  see  where  any  relief  can  be  granted  by  any 
court  other  than  a  court  of  bankruptcy.  Nor  can  a  suit  in 
any  case  be  sustained  upon  the  official  bond  of  the  marshal 
for  a  breach  of  its  conditions,  for  such  a  claim  as  is  presented 
in  this  action. 

The  civil  code  of  Wyoming",  section  85  of  the  act  of  De- 
cember 11,  1'8T3;  gives,  among  other  grounds  of  demurrer, 
"that  the  court  has  no  jurisdiction  of  the  person  of  the 
defendant,  or  the  subject  of  the  action."  Now,  if  the  claim 
of  the  plaintiff  in  this  case  can  only  be  presented  through 
the  marshal,  and  in  a  bankruptcy  court,  it  follows  a  priori 
that  the  district  court  can  have  no  jurisdiction,  and  that  the 


March,  1875.]  DAYTON  v.  WYOMINO  NATIONAL  BANK.  263 


Statement  of  Pacts. 


action,  if  brought,  must?  be  against  the  marshal  on  his  con- 
tract, and  not  against  him  and1  his  bondsmen  in  any  official 
capacity. 

The  ruling  of  the  court  below  in  sustaining  the  demurrer 
is  therefore  sustained,  and  the  defendants  discharged  witih 
their  costs. 


DAYTON  v.  THE  WYOMING  NATIONAL  BANK. 

EVIDENCE. — An  affidavit  made  in  the  action  by  a  witness  on  a  former 
occasion,  simply  showing  contradictory  statements,  cannot  be  in- 
troduced as  evidence  on  the  cross-examination  of  such  witness,  ex- 
cept for  the  purpose  of  impeachment. 

IDEM: — To  impeach  the  testimony  of  a  witness  in  that  manner,  it  is 
necessary  to  call  the  attention  of  the  witness  to  his  previous  state- 
ments, by  definitely  fixing  time,  place  and  circumstances. 

REPLEVIN. — Where  a  sheriff  was  sued  in  replevin  for  property  taken  by 
him  as  such  sheriff,  under  certain  writs  of  attachment:  Held,  that 
it  was  unnecessary  for  him  to  prove  on  the  defense  that  he  was  in 
every  respect  the  qualified  sheriff  of  the  county;  it  was  sufficient 
to  prove  that  he  was  the  sheriff  de,  facto  of  such  county. 

IDEM. — Nor  that  it  was  necessary  for  him  to  prove,  in  order  to  estab- 
lish his  right  to  hold  the  property  under  such  writs,  that  the  at- 
tachments were  issued  on  valid  and  bona  fide  claims. 

LDK-M. — The  sheriff  need  not  go  behind  the  face  of  the  papers.  If  they 
have  been  issued  in  due  form  from  a  court  of  competent  jurisdic- 
tion, he  will  be  protected. 

IDEM. — The  plaintiff  in  a  suit  in  replevin  must  prove  the  ownership, 
in  a  right  of  possession  to  the  property,  by  a  preponderance  of  evi- 
dence: 

IDEM.— He  cannot  mak«  out  his  case  by  attacking  the  defendant's  title. 

EKKOE  to  Second  District  Court,  for  Albany  County. 

The  defendant  in  error,  plaintiff  in  the  district  court,  com- 
menced an  action  in  replevin  against  the  plaintiff  in  error, 
defendant  in  the  district  court,  for  the  recovery  of  the  posses- 
sion of  five  hundred  cords  of  fire-wood.  The  petition  alleged 
that  the  plaintiff  was  the  owner  of  said  wood,  and  was  enti- 
tled to  the  immediate  possession  thereof;  that  the  defendant 
wrongfully  and  unjustly  detained  in  his  possession  the  said 


264         DAYTON  v.  WYOMING  NATIONAL  BANK.  [Sup.  Ct. 


Statement  of  Facts. 


wood,  and  had  so  detained  the  said  wood  for  the  period  of 
thirty  days,  to  the  damage  of  the  plaintiff  in  the  sum  of  five 
hundred  dollars. 

The  defendant,  for  answer  to  the  petition:  1.  Denied  the 
petition  generally;  2.  Denied  that  the  plaintiff  was  the 
owner  of  the  wood  in  question ;  that  the  plaintiff  was  en- 
titled to  the  immediate  possession  thereof ;  that  the  defend- 
ant ever  took  or  held  the  wood  in  question ;  and  that  the 
defendant  ever  unlawfully  detained  the  possession  of  the 
said  wood  from  the  plaintiff  ;  3.  The  defendant  alleged,  that 
as  the  lawful  sheriff  of  Albany  county,  and  by  virtue  of  cer- 
tain writs  of  attachment  issued  out  of  the  district  court 
of  said  county,  directed  to  him,  the  sheriff  of  said  county, 
against  one  W.  S.  Brammel,  he  levied  upon  said  wood  as  the 
property  of  said  Brammel,  and  took  the  same  into  his  pos- 
session ;  that  at  the  time  of  said  levy,  the  said  Brammel  was 
the  owner  of  and  in  the  possession  of  said  wood,  and  that 
by  reason  of  said  levy,  he,  the  defendant,  as  sheriff,  had  a 
special  property  in  said  wood  to  the  amount  of  two  thou- 
sand three  hundred  dollars,  for  which  he  prayed  judgment. 

No  replication  appears  from  the  record  to  have  been  filed 
to  this  answer.  The  wood  in  question,  on  the  writ  of  at- 
tachment, was  delivered  to  the  plaintiff.  The  evidence  of- 
fered showed  that  the  plaintiff  claimed  to  be  the  owner  of 
the  wood  by  reason  of  an  alleged  purchase  of  the  wood  of 
W.  S.  Brammel,  the  defendant  in  the  writs  of  attachment 
previous  to  the  issuing  of  said  writs.  A  number  of  impor- 
tant questions  were  raised  by  the  testimony,  among  which 
were :  Whether  the  plaintiff  ever  purchased  the  wood  in 
question?  Whether  the  wood  was  in  the  possession  of  the 
said  Brammel,  or  in  the  possession  of  the  plaintiff  at  the  time 
the  same  was  attached  ?  There  was  conflicting  testimony 
upon  each  of  these  questions.  The  jury  under  the  instruc- 
tions of  the  court  .found  for  the  plaintiff  in  the  court  below, 
and  assessed  the  damages  at  four  hundred  and  twenty-six 
dollars,  and  after  motion  for  a  new  trial  interposed  by  the 
defendant  in  the  court  below  was  overruled,  a  judgment 


March,  1875.]  DAYTON  v.  WYOMING  NATIONAL  BANK.  265 

Opinion  of  the  Court — Carey,  J. 

was  rendered  on  the  verdict  for  the  plaintiff.  A  large  num- 
ber of  exceptions  were  taken  in  the  court  below  to  the  rul- 
ings of  the  presiding  judge,  which  are  the  basis  of  the  peti- 
tion in  error. 

E.  P.  Johnson  and  M.  C.  Brown,  for  plaintiff  in  error, 
contended  that  there  was  manifest  error  committed  by  the 
district  court  in  refusing  to  admit  the  affidavit  of  the  witness 
Ivinson,  in  admitting  other  testimony,  and  to  the  charge 
given  to  the  jury  and  cited  on  the  question  of  evidence :  1 
Greenl.  sec.  449 ;  2  Phill.  912 ;  1  Greenl.  442.  And  on  the 
question  of  instructions :  2  Nash,  834 ;  Hill,  on  Rem.  for 
Torts,  30,  53,  97 ;  1  Phill.  on  Ev.  592 ;  1  Pars,  on  Cont. 
475 ;  Chitty  on  Cont.  8  ;  Baltis  v.  Hamlin,  22  Wis.  669 ;  2 
Nash,  112 ;  Williams  v.  West,  2  Ohio  St.  82 ;  Sedg.  on  Dam. 
453 ;  Laws  of  Wyoming,  543 ;  Powell  on  App.  Proc.  145  et 
seq. ;  5  Ohio,  338." 

J.  W.  Kingman,  for  defendant  in  error,  cited  :  Hill,  on 
New  Trials,  sees.  39,  55,  55;  Thompson  on  Prov.  Rem.  144, 
153  ;  King  v.  Barrett,  11  Ohio  St.  261  ;  Seney's  Code,  426, 
443 ;  Bell's  Dig.  523 ;  Crocker  on  Sheriffs,  865 ;  Drake  on 
Attach.  290 ;  2  Mass.  Dig.  59. 

By  the  Court,  CAREY,  J.  The  first  question  presented  is  : 
Did  the  court  below  properly  refuse  to  permit  the  plaintiff 
in  error  to  introduce  on  the  trial  as  evidence  an  affidavit  for 
continuance,  that  theretofore  had  been  made  by  the  witness 
Ivinson,  agent  for  the  defendant  in  error,  and  filed  in  the 
case?  This  affidavit  could  only  have  been  introduced  on 
the  trial  for  one  purpose ;  namely,  to  show  that  the  said 
Ivinson,  as  a  witness  for  the  defendant  in  error,  had  made 
statements  in  the  affidavit  for  continuance,  contrary  to  those 
testified  to  on  the  trial,  and  thereby  impeach  the  testimony 
of  the  witness.  To  impeach  the  testimony  of  a  witness,  it 
is  necessary  to  call  the  attention  of  the  witness  to  his  pre- 
vious statements,  by  fixing  the  time,  place  and  circum- 
stances. This  rule  is  a  wise  one  and  should  be  followed. 


266         DAYTON  v.  WYOMING  NATIONAL  BANK.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

It  is  simple  justice  to  the  witness.  If  his  mind  is  directed 
to  the  particular  circumstances  and  occasion,  he  may  not 
only  recollect  but  satisfactorily  explain  his  previous  and  ap- 
parently contradictory  statements.  In  this  case  the  founda- 
tion was  not  laid  to  impeach  the  testimony  of  the  said  Irvin- 
son,  and  the  court  properly  ruled  out  the  affidavit :  1  Green- 
leaf's  Evidence,  sec.  462.  Another  error  assigned,  is  that 
the  court  below  permitted  the  witness  Charles  Hutton, 
called  by  defendant  in  error  in  rebuttal,  to  answer  the  fol- 
lowing question  :  "  Did  Brammel  point  out  to  you  two  piles 
of  wood ;  if  so,  what  did  he  say  ?"  This  question  we  con- 
sider objectionable.  Brammel  was  not  a  party  to  the  suit, 
and  whatever  statements  he  made  to  Hutton  were  nearly. 
Since  Brammel  had  been  called  as  a  witness  by  the  plaintiff 
in  error,  the  statements  made  to  Hutton  might  have  been 
related  by  Hutton  to  impeach  and  weaken  the  testimony  of 
Brammel,  if  the  foundation  for  such  impeachment  had  been 
made,  but  as  no  such  foundation  was  laid,  the  question 
should  have  been  ruled  out. 

The  court,  at  the  request  of  the  defendant  in  error,  in- 
structed the  jury :  "  That  the  sheriff  must  establish  by  clear 
proof  every  fact  requisite  to  give  him  the  right  to  attach,  to 
wit :  1.  That  he  is  the  duly  qualified  sheriff  of  the  county ; 
2.  That  a  just  debt  existed  in  each  of  the  attachments ;  3. 
That  a  legal  ground  for  an  attachment  existed ;  4.  That  he 
made  and  kept  by  a  legal  possession  a  bona  fide  levy  ;  5. 
That  the  attaching  creditors  can  get  only  such  title  as  Bram- 
mel had  at  the  time  of  the  attachment,  and  if  he  had  sold 
the  wood  either  to  the  railroad  company  or  the  bank,  and 
got  his  pay  for  it,  the  officer  had  no  right  to  take  it." 

We  are  of  the  opinion  that  the  foregoing  instructions 
should  have  been  refused  by  the  court.  While  under  a  dif- 
ferent state  of  circumstances  they  might  have  been  applica- 
ble, we  do  not  consider  that  they  should  have  been  given 
under  the  pleadings  and  evidence  in  the  case  without  qual- 
ification. None  of  the  propositions  contained  in  the  said 
instructions  were  raised  by  the  pleadings,  as  no  replication 


March,  1875.]  DAYTON  v.  WYOMING  NATIONAL  BANK.  267 


Opinion  of  the  Court — Carey,  J. 


was  filed  denying  the  special  answer  of  the  sheriff  in  refer- 
ence to  his  holding  the  property  in  question  on  certain 
writs  of  attachment. 

These  instructions,  without  qualification,  shifted  the  af- 
firmative of  the  case  from  the  plaintiff  to  defendant,  and 
could  not  have  done  otherwise  than  have  misled  the  jury. 
It  is  not  necessary  for  an  officer  to  produce  the  certificate 
of  election  or  commission  of  appointment  to  show  his  offi- 
cial character.  Proof  that  he  has  acted  notoriously  as  such 
officer  is  prima  facie  evidence  of  his  official  character.  All 
who  have  proved  that  they  have  acted  as  public  officers  are 
presumed  to  have  been  duly  appointed  or  elected  until  the 
contrary  appear:  9  Wend.  17  ;  1  Green.  Ev.  sees.  83,92. 
Whether  the  debts  in  the  attachment  suits  were  just,  or 
whether  the  ground  upon  which  the  attachment  writs  issued 
were  legal,  were  not  questions  raised  by  the  pleadings. 

Another  instruction  given  by  the  court  below  and  as- 
signed as  error  is  as  follows  :  "  That  payment  of  the  pur- 
chase-money perfects  a  contract  of  sale  as  effectually  as 
delivery  of  goods."  This  is  the  law  as  to  the  parties  to  the 
contract,  but  not  as  to  third  parties.  Section  2  of  "  an  act 
to  prevent  frauds  and  perjuries,"  Laws  1871,  p.  77,  ex 
pressly  provides  that  the  payment  of  purchase-money  for 
personal  property  makes  such  contract  a  valid  one  ;  but  we 
are  of  the  opinion  that  the  statute  did  not  change  the  law  as 
it  existed  previous  to  its  passage,  so  far  as  the  rights  of 
third  parties  are  concerned,  and  that  the  law  in  reference 
to  the  sale  of  chattels  where  the  possession  does  not  ac- 
company the  sale,  so  far  as  the  rights  of  third  parties  are 
concerned,  is  the  same  as  it  existed  under  the  statutes  of 
frauds  of  England.  The  laws  of  this  territory  in  reference 
to  chattel  mortgages  (Laws  1869,  chap.  66)  provides,  it  is 
true,  that  personal  property  may  remain  in  the  possession 
of  the  mortgagor  for  the  period  of  one  year  after  the  mort- 
gage is  recorded  if  the  mortgage  shall  so  provide,  but  the 
law  only  applies  to  mortgages  and  other  conveyances  that 
have  the  effect  of  mortgages  and  not  to  absolute  sales. 


268          DAYTON  v .  WYOMING  NATIONAL  BANK.  [Sup.  Gt. 

Opinion  of  the  Court — Carey,  J. 

The  law  in  reference  to  absolute  sales,  when  the  possession 
does  not  accompany  the  sale,  has  given  rise  to  different 
opinions  in  different  states. 

In  Pennsylvania,  New  Jersey,  Vermont,  and  other  of 
the  states,  it  has  been  held  that  on  sale  of  chattels  pos- 
session must  accompany  the  sale,  or  it  is  fraudulent  in  law, 
although  there  is  no  fraud  in  fact :  5  Serg.  &  Rawle,  275. 
In  Massachusetts,  New  Hampshire,  Ohio,  and  other  states, 
it  has  been  held  that  the  remaining  in  possession  after  sale 
is  prima  facie  evidence  of  fraud.  Unexplained  the  retain- 
ing of  possession  after  sale  would  be  held  fraudulent,  but 
such  possession  is  not  held  to  be  exclusive  evidence  of 
fraud  in  itself :  9  Ohio,  153.  The  latter  rule  appears  to  be 
the  prevailing  rule,  and  should  be  followed  in  our  courts. 
The  court  also  instructed  the  jury  "that  the  passing  upon 
the  evidence  of  the  contract  alleged  to  have  been  made  by 
Brammel  with  the  officers  of  the  bank,  the  jury  are  to  be 
governed  by  the  weight  of  testimony,  and  the  language 
used  by  Brammel  when  he  got  the  four  hundred  dollars,  is 
to  be  taken  as  it  was  understood  by  the  bank,  and  not  as 
Brammel  might  have  understood  it."  This  instruction  was 
clearly  erroneous.  The  contract,  if  there  was  one,  was  not 
what  one  of  the  parties  understood  it  to  be,  but  what  both 
assented  to.  There  is  no  contract  unless  the  parties,  not 
one  of  the  parties,  assent  to.  And  they  must  assent  to  the 
same  thing  in  the  same  sense  :  1  Parson's  Con.  475-80. 

The  following  instruction  was  requested  by  the  defend- 
ant in  the  court  below,  and  refused  by  the  court:  "It 
devolves  upon  the  plaintiff  in  the  case  (defendant  in  error) 
to  prove  the  title  and  ownership  of  the  property  taken  on 
the  writ  of  replevin  to  be  in  the  plaintiff  by  a  preponder- 
ance of  evidence,  and  if  the  evidence  shows  that  title  to 
the  property  in  question  at  the  time  this  suit  was  com- 
menced was  in  any  person  other  than  the  plaintiff,  the 
Wyoming  National  Bank,  the  plaintiff  fails  in  his  case,  and 
the  verdict  must  be  for  the  defendant."  This  instruction 
should  have  been  given  to  the  jury.  The  judge  who  tried 
the  case  appears  to  have  fallen  in  error  in  considering  the 


March,  1875.]  DAYTON  v.  WYOMING  NATIONAL  BANK.  269 

Opinion  of  the  Court — Carey,  J. 

question  at  issue  to  be  whether  the  defendant  unlawfully 
took  the  property  in  question,  when  the  real  question  was 
whether  the  defendant  unlawfully  detained  the  property 
from  the  plaintiff. 

The  important  questions  presented  under  the  laws  of  this 
territory  on  the  subject  of  replevin  (Civil  Code,  Laws  1869, 
sec.  186),  are  :  1.  Is  the  plaintiff  the  owner  of  the  property 
in  question,  or  has  he  a  special  ownership  or  property 
therein?  2.  Is  he  entitled  to  the  immediate  possession  of 
the  property?  3.  Is  the  property  wrongfully  detained  from 
him  by  the  defendant?  The  plaintiff  to  recover  must 
establish  the  affirmative  of  each  of  these  propositions  by  a 
preponderance  of  testimony.  If  he  fails  to  maintain  either 
of  these  propositions,  the  verdict  of  the  jury  should  be  for 
the  defendant.  Unless  the  plaintiff  in  the  court  below  was 
the  owner  of  the  property  in  question  as  alleged,  the  action 
of  the  sheriff,  though  it  may  have  been  wrongful  as  against 
Brammel,  Ivinson,  or  the  railroad  company,  could  not  be 
taken  advantage  of  by  the  plaintiff.  The  plaintiff  in  an 
action  of  replevin  must  recover,  if  at  all,  upon  the  strength 
of  his  own  title,  and  not  upon  the  weakness  of  that  of  the 
defendant :  Hilliard  on  Remedies  for  Torts,  p.  30,  sec.  6. 

The  court  also  instructed  the  jury  that  "in  addition  to 
the  actual  damages  sustained  by  the  plaintiff,  if  the  taking 
of  the  sheriff  was  wrongful  you  may  assess  such  exemplary 
or  vindictive  damages,  as  a  punishment  for  the  wrongful 
taking,  as  you  think  just  and  proper  under  the  circum- 
stances." Section  196  of  the  code  of  civil  procedure,  laws 
of  1869,  provides,  where  the  property  has  been  delivered  to 
the  plaintiff,  as  in  this  case,  the  jury  shall  assess  adequate 
damages  to  the  plaintiff  for  the  "  illegal  detention  "  of  the 
property  ;  not  for  the  "  wrongful  taking."  The  section  does 
not  authorize  vindictive  damages,  but  adequate  damages,  or, 
in  other  words,  such  damages  as  the  evidence  shows  the 
plaintiff  has  sustained.  There  are  other  errors  assigned, 
but  we  deem  it  unnecessary  to  consider  them  at  this 
time. 

Judgment  reversed  and  new  trial  ordered. 


270  IVINSON  v.  HANCE.  [Sup.  Ct. 

Argument  for  Complainant. 


IVINSON  v.  HANCE  ET  AL. 

MUNICIPAL  CORPORATIONS — PERSONAL  PROPERTY. — Village  lots  to 
which  no  title  has  been  derived  from  the  United  States  are  not 
property  that  should  be  assessed,  but  improvements  thereon  may 
be  assessed  as  personal  property. 

CITY  WARRANTS.— The  board  of  trustees  or  managing  officers  of  a  mu- 
nicipal corporation  may  issue  warrants  upon  the  treasury,  to  be 
used  as  evidences  of  indebtedness,  although  there  is  no  money  in 
the  municipal  treasury  at  the  time,  and  although  not  specially  au- 
thorized so  to  do  by  the.  city  charter,  under  which  they  were  pro- 
ceeding. 

TAXES. — Taxes  cannot  be  levied  upon  lands  to  which  the  title  yet  re- 
mains in  the  United  States. 

COURTS  OF  CHANCERY— TAXATION. — Courts  of  chancery  may  interfere 
to  restrain  the  collection  of  taxes,  but  only  where  a  cloud  may  cast 
upon  the  title  of  real  estate,  or  irreparable  injury  committed. 

APPEAL  from  the  District  Court  for  Albany  County. 

A  full  statement  of  the  case  appears  in  the  opinion  of  the 
chief  justice. 

J.  W.  Kingman,  for  complainant. 

I.  As  to  jurisdiction  in  equity  to  restrain  the  levy  and  col- 
lection of  illegal  taxes,  and    the  illegal    disbursements  of 
public  funds :  See  Dillon,  677,  693. 

II.  As  to  the  purposes  and  powers  of  municipal  corpora- 
tions :  Dillon,  17-25,  28,  153. 

HI.  These  corporations  have  no  powers,  except  such  as 
are  expressly  granted  :  Dillon,  101  et  seq. ;  Cooley's  Const. 
Lim.  194-197,  and  notes. 

IV.  As  to  their  power  to  tax :  Dillon,  560-3-4,  576,  580 ; 
see  plaintiff's  bill,  1-5  ;  City  Charter,  sees.  27,  29. 

V.  What  is  taxable  property  in  this  territor}r  and  under 
this  charter :  Dillon  583,    591  ;  Cooley's  Const.  499,  501, 
515  ;  10  Wis.  187,  206  ;  see  bill,  1,  2. 

VI.  As  to  the  method  of  passing  ordinances,  first  notice : 
Dillon,  251,  273,  282;  second  publication :  Dillon,  286;  Stat. 


March,  1875.]  IVTNSON  v.  HANCE.  271 

Argument  for  Defendants. 

of  1869,  206,  sec  16.  Must  be  subordinate  to  general  laws 
and  conformable  thereto:  Dillon,  284,  308;  Cooley's  Const. 
198,  370. 

VII.  An  intentional  omission  of  taxable  property  vitiates 
the  whole  tax:  10  Wis.  187,  206;  16  Wis.  118. 

VIII.  As  to  the  limitations  of  the  power  to  tax :  Cooley's 
Const.  518,  note;  City  Charter,  206,  sees.  15,  18;  City  Char- 
ter, sees.  23,  26 ;  Cooley's  Const.  520,  note;  Dillon,  580. 

M.  C.  Brown,  for  defendants. 

This  case  stands  on  the  bill,  demurrer,  affidavits,  and 
certain  agreed  facts.  The  point  to  be  considered  and  de- 
termined is  as  follows :  Are  the  facts  presented  by  the 
record  in  this  case  sufficient  for  the  court  to  order  a  perpet- 
ual injunction  to  restrain  the  city  trustees  from  enforcing 
the  tax  ordinances  of  the  corporation  of  Laramie  City  and 
the  collection  of  the  tax  assessed  under  and  by  virtue  of 
the  authority  of  the  said  ordinances  and  the  said  board  of 
trustees  ? 

As  to  the  first  point,  that  the  board  did  not  determine  the 
amount  of  the  tax  for  the  current  year  before  the  third 
Tuesday  of  May,  we  claim  the  statute  is  directory  merely, 
and  that  a  determination  of  the  amount  of  tax  after  that 
time  does  not  invalidate  the  tax  :  Grearhart  v.  Dixon,  1  Penn. 
St.  224. 

In  reference  to  the  second  point  that  the  description  of 
the  property  assessed  is  not  in  accordance  with  law,  the 
bill  alleges  that  the  laws  of  the  territory  require  certain 
things  to  be  done  and  a  certain  formula  to  be  followed,  and 
that  we  did  not  do  it  in  that  way.  The  bill  does  not  allege 
what  we  did  do  and  show  wherein  \ve  erred,  but  states 
negatively  a  legal  conclusion.  To  sustain  the  proposition 
that  a  conclusion  of  law  is  not  a  fact  to  sustain  a  bill  of 
complaint  needs  no  citation  of  authorities.  But  if  the  mat- 
ter was  stated  in  a  proper  form,  we  claim  that  the  statute  is 
directory  in  its  terms:  Laws  of  Wyoming,  1869,  ch.  28, 
sec.  33. 


272  IVINSON  v.  HANCE.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

As  to  the  third  point  urged  by  complainant,  which  is  in 
reference  to  the  neglect  of  the  assessor  to  assess  town  lots 
and  assessing  buildings  and  improvements  thereon ;  it  is 
admitted  by  the  record,  and  was  so  agreed  in  the  lower 
court,  that  no  patent  has  issued  by  the  United  States  for 
any  of  the  lands  or  lots  within  the  corporate  limits  of  said 
town  of  Laramie  City.  Since,  then,  no  patent  had  issued  for 
any  of  these  lands,  we  conclude  title  to  the  said  land  is  yet 
in  the  United  States.  If  title  is  in  the  United  States,  then 
the  lots  could  not  be  assessed,  and  the  improvements 
thereon  must  be  assessed :  Laws  of  Wyoming,  341-42 ; 

Counties  of ,  in  Nebraska  v.  U.  P.  £  C.  B.  £  Q.  R.  R., 

decided  by  Dillon  in  the  U.  S.  Circuit  Court ;  3  Ohio  State. 

Again,  if  the  court  holds  that  the  errors  in  the  assess- 
ment are  such  as  to  make  the  assessment  wholly  void,  then 
there  is  no  ground  for  perpetual  injunction,  or  to  restrain 
the  collection  of  the  tax  by  sale  of  personal  property  levied 
on  by  the  collector :  2  Dill.  Mun.  Corp.  839 ;  55  Conn.  232  ; 
24  Mo.  20 ;  17  Id.  474  ;  29  Wis.  51 ;  21  Id.  44 ;  28  Id.  583  ; 
2  Cal.  590;  4  E.  D.  Smith,  675 ;  6  Cal.  273  ;  12  Id.  298-99; 
33  Barb.  322;  23  Miss.  443;  22  111.  34,  303,  574;  4  Barb.  9, 
17  ;  25  N.  Y.  312;  22  Miss.  90;  26  111.  610;  Hill,  on  Inj. 
458. 

We  further  claim  that  all  other  matters  in  the  bill  are  ob- 
jectionable on  the  grounds  of  impertinence  and  multifari- 
ousness:  Story's  Eq.  PL  sees.  266-7;  1  Daniels  Ch.  PI. 
341,  356. 

By  the  Court,  FISHER,  C.  J.  This  was  a  bill  in  equity 
filed  in  the  district  court  of  Albany  county,  of  September 
term,  A.  D.  1874,  to  restrain  defendant  from  collecting  certain 
taxes  levied  by  the  board  of  trustees  of  Laramie  City  for 
municipal  purposes.  To  which  bill  the  defendants  filed  a 
general  demurrer,  which  was  overruled  by  the  court.  The 
counsel  for  the  respective  parties  then  entered  into  a  stipu- 
lation to  submit  all  the  matters  in  controversy  to  this  court 
at  the  March  term,  A.  D.  1875,  so  that  the  question  to  be 


March,  1875.]  IVINSON  v.  HANCB.  273 

Opinion  of  the  Court — Fisher,  C.  J. 

determined  is,  should  the  demurrer  have  been  sustained  or 
not? 

The  stipulation  of  the  parties  sets  out  that  at  the  date  of 
the  act  of  incorporation  of  Laramie  City,  the  title  to  the  land 
on  which  the  town  was  built  was  still  in  the  United  States 
and  was  part  of  a  military  reservation,  that  the  boundaries 
of  the  reservation  have  been  decreased  so  as  to  have  the  in- 
corporated portion  without  the  bounds  of  said  reservation, 
but  that  the  title  to  the  lands  in  question  had  not  been 
changed  but  still  remained  in  the  government. 

The  question  therefore  arises  as  to  whether  the  town  lots 
in  the  possession  of  citizens  are  subject  to  taxation  as  real 
estate.  It  is  also  agreed  that  in  levying  taxes  unimproved 
lots  were  not  listed  and  assessed  for  purposes  of  revenue, 
and  that  where  lots  had  been  improved  by  the  erection  of 
buildings  that  said  buildings  were  listed  and  assessed  as 
personal  property.  It  is  further  stipulated  that  certain  in- 
debtedness existing  against  said  city  arose  from  the  issuance 
of  city  warrants  in  regular  form  by  the  board  of  trustees  of 
said  city.  It  is  claimed  in  plaintiff's  bill  that  the  city 
trustees  exceeded  their  authority  by  the  issuance  of  city 
warrants,  thus  creating  a  debt  without  complying  with  the 
terms  of  the  city  charter,  and  that  they  claim  that  a  court  of 
equity  has  jurisdiction  to  restrain  the  collection  of  taxes  for 
this  reason,  as  well  as  for  the  reason  of  the  non-assessment 
of  the  real  estate.  They  also  complain  of  certain  irregular- 
ities in  the  proceedings  of  the  trustees,  and  of  the  city  mar- 
shal in  the  attempt  to  enforce  the  collection  of  the  taxes  by 
restraint  of  plaintiff's  property. 

The  foregoing  are  the  main  questions  upon  which  the  de- 
cision of  this  court  is  invoked.  The  act  of  congress  entitled 
"  An  act  to  provide  a  temporary  government  for  the  terri- 
tory of  Wyoming,"  approved  July  25,  1868,  sec.  6,  provides 
among  other  things  that  "  no  law  shall  be  passed  by  the 
legislature  of  said  territory  interfering  with  the  primary 
disposal  of  the  soil ;  no  tax  shall  be  imposed  upon  the  prop- 
erty of  the  United  States."  And  the  legislature,  at  its  ses- 
18 


274  IVINSON  v.  HANCB.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

sion  of  1869,  passed  an  act  entitled  "  An  act  to  provide  a 
territorial  and  county  revenue,  see  laws  of  1869,  pp. 
340-1-2.  The  third  section  of  which  provides  that  all 
property,  real  and  personal,  within  this  territory  is  subject 
to  taxation  in  the  manner  herein  directed,  and  this  section 
is  intended  to  embrace  lands  and  lots  in  towns,  including 
lands  bought  from  the  United  States,  whether  bought  on 
credit  or  otherwise ;  buildings  or  improvements  erected 
upon  lands  the  title  to  which  remains  in  the  United  States, 
or  in  any  incorporated  company."  If  the  enumeration  of 
things  in  particular  excludes  things  in  general,  then  there  is 
no  room  to  doubt  that  there  is  no  power  given  to  either  the 
territorial  legislature,  or  any  municipal  corporation  within  the 
territory,  to  tax  the  lands  the  title  to  which  is  in  the  United 
States,  and  that  they  are  expressly  prohibited  by  the  sixth 
section  of  the  organic  act  from  the  assessment  or  collection 
of  taxes  from  lands  so  long  as  the  title  remains  in  the  United 
States.  And  the  legislature  certainly  took  the  same  view  of 
the  question  when  they  passed  the  third  section  of  the  rev- 
enue act  of  1869.  This  question  being  so  fully  settled  by 
those  enactments,  it  would  be  a  waste  of  time  to  examine  it 
further. 

It  is  true  that  the  learned  counsel  for  the  plaintiff  have 
cited  a  large  number  of  authorities  upon  the  subject  of  tax- 
ation, all  tending  to  show  that  all  property  should  bear  its 
equitable  share  of  the  expenses  of  government,  but  as  long 
as  the  prohibitions  in  the  act  organizing  the  territory,  and 
the  act  providing  for  the  raising  of  revenue  are  on  the  statute 
books,  it  is  labor  in  vain  to  talk  of  the  equities  of  the  case. 
The  next  question  submitted  is,  as  to  the  power  of  the  trus- 
tees of  the  city  of  Laramie.  The  eighteenth  section  defines 
the  power  and  duties  of  the  said  trustees  very  fully,  and  this 
and  other  sections  of  the  act  of  incorporations  gives  them 
power  to  levy  and  collect  such  an  amount  of  taxes  as  may 
be  required  to  conduct  the  affairs  of  the  city,  and  in  the 
imposition  of  the  taxes  they  are  to  be  governed  by  the  ter- 
ritorial laws. 


March,  1875.]  IVJNSON  v.  HANOE.  275 

Opinion  of  the  Court — Fisher,  C.  J. 

While  the  twenty-third  section  provides  that  the  trustees 
shall  not  incur  any  debt  or  borrow  money  for  the  use  of  the 
city  without  having  the  concurrence  of  five  eighths  of  the 
taxable  property  owners,  to  be  ascertained  by  a  petition  for 
that  purpose.  Now,  what  is  the  meaning  of  this  sec- 
tion? Does  it  mean  that  no  work  shall  be  done  on  the 
streets,  nor  anything  done  by  which  a  debt  shall  be  created 
against  the  city  until  five  eighths  of  the  citizen  taxpayers 
shall  first  apply  by  petition  to  have  such  work  done  ?  Surely 
not.  Statutes  are  to  be  construed  in  a  reasonable  man- 
ner, and  where  there  appears  to  be  something  conflicting, 
we  are  to  compare  one  part  by  another,  and  in  this  way  in- 
quire into  the  will  of  the  legislature  in  the  passage  of  the 
statute,  so  that  if  the  conflict  be  not  so  great  as  to  destroy 
the  whole  force  of  the  law,  we  are  to  interpret  it  so  that  the 
whole  may  stand:  See  1  Blackstone,  ch.  1. 

Now,  what  was  the  intention  of  the  legislature  when  they 
passed  the  law  incorporating  the  city  of  Laramie  ?  Did  they 
intend  to  say  that  no  debt  should  be  created  by  street  im- 
provements, fire  and  water  regulations,  the  providing  places 
in  which  to  keep  prisoners,  the  pay  of  the  marshal  and  other 
officers,  without  first  having  a  petition  signed  by  three  fifths 
of  the  taxable  citizens  ?  Surely  not.  What,  then,  is  meant 
by  the  prohibition  contained  in  the  twenty-third  section? 
Simply  that  no  extraordinary  expenditure  of  the  funds  of 
the  city  should  be  made,  or  permanent  debt  be  .created  by 
borrowing  money  on  the  credit  of  the  city,  without  such  per- 
mission being  first  had  and  obtained.  Otherwise,  how  could 
the  ordinary  expenses  of  the  corporation  be  met?  We, 
therefore,  think  there  can  be  no  doubt  that  the  trustees  of 
Laramie  city  were  fully  empowered,  under  the  terms  of  the 
city  charter,  in  levying  and  collecting  a  tax  sufficient  to  meet 
the  ordinary  expenses  of  the  corporation.  There  was  an- 
other question  raised  on  the  argument  of  the  case,  although 
not  embraced  in  the  written  stipulation  of  the  parties,  and 
that  is,  as  to  whether  the  trustees  proceeded  in  the  proper 
manner  to  make  the  assessment.  Of  this  there  is  some 


276  IVINSOK  v.  HANCE.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

doubt ;  but  inasmuch  as  it  is  not  fairly  presented  to  us,  nor 
do  we  consider  it  as  appealing  to  a  court  of  chancery  for 
relief,  we  do  not  feel  called  upon  to  more  than  give  it  an 
incidental  notice. 

The  only  question  remaining  to  be  considered  is  that  of  the 
jurisdiction  of  the  court  sitting  in  chancery  to  pass  upon  the 
question  of  the  collection  of  taxes,  so  as  to  call  for  interfer- 
ence by  injunction.  This  question  has  been  so  frequently 
passed  upon  that  it  should  be  governed  by  the  rule  stare  decisis. 
It  is  but  seldom  that  courts  of  equity  will  interfere  by  injunc- 
tion to  restrain  the  collection  of  taxes,  even  where  they  have 
been  illegally  assessed.  There  are  cases,  however,  where 
courts  of  equity  will  interfere.  Such  as  where  there  is  no  com- 
plete remedy  at  law  ;  where  a  cloud  may  be  cast  upon  the  title 
to  real  estate  by  a  sale  for  taxes  ;  where  the  parties  collecting 
an  illegal  tax  are  wholly  irresponsible,  or  where  a  multi- 
plicity of  suits  would  result  from  an  appeal  to  a  court  of  law. 
But  we  fail  to  see  in  the  case  at  bar  wherein  either  of  these 
points  arise.  First,  we  have  seen  that  the  cause  of  com- 
plaint of  the  non-assessment  of  the  realty  embraced  within 
the  bounds  of  the  corporation  is  removed  by  the  provisions 
of  the  organic  act  of  the  territory  and  laws  of  the  territorial 
legislature ;  Second,  that  the  trustees  are  fully  justified  by 
the  provisions  of  the  charter  to  levy  and  assess  a  tax,  rea- 
sonable in  amount,  to  meet  the  ordinary  expenses  of  the 
municipal  government,  and  there  is  not  even  a  complaint 
that  the  rate  of  assessment  is  too  high. 

There,  of  course,  cannot  be  any  such  thing  as  a  cloud 
upon  the  title,  and  there  is  nothing  in  the  stipulation  or 
record  which  justifies  the  conclusion  that  a  multiplicity  of 
suits  are  likely  to  grow  out  of  the  collection  of  the  taxes ; 
and  as  to  the  legality  of  the  assessment,  that  can  be  settled 
in  a  court  of  common  law  jurisdiction — by  an  appeal  which 
performs,  under  the  laws  of  this  territory,  the  same  office 
as  certlorari  at  common  law,  or  the  writ  of  certiorari  itself 
can  be  resorted  to,  even  though  no  statutory  provision  has 
been  made  for  its  issuance,  because  our  statutes  provide 


March,  1875.]  IVINSON  v.  PEASEJ.  277 

Argument  for  Plaintiff  in  Error. 

that  in  the  absence  of  statutory  provisions,  the  common  law 
remains  in  full  force.  We  thus  have  arrived  at  the  conclu- 
sion that  there  is  nothing  in  plaintiff's  bill  which  entitles 
him  to  relief  in  a  chancery  proceeding,  from  the  fact  that 
ample  relief  may  be  found  in  the  common  law  side  of  the 
court,  and  that  but  for  the  stipulation  of  the  parties  by 
which  the  case  was  brought  here  for  adjudication,  the  court 
below  would  have  been  justified  in  sustaining  defendant's 
demurrer. 

The  plaintiff's  bill  is  dismissed. 


IVINSON  v.  PEASE  ET  AL. 

PRACTICE,  JUSTICES'  COURT  APPEALS. — The  statutes  of  Wyoming  pre- 
scribe how  a  judgment  of  the  court  of  a  justice  of  the  peace  may 
be  reversed.  The  law  must  be  strictly  followed,  or  the  appellate 
court  will  not  obtain  jurisdiction.  No  other  proceedings  can  give 
jurisdiction. 

COMPOUNDING  FELONIES. — Neither  a  justice  of  the  peace,  prosecuting 
witness,  nor  prosecuting  attorney,  possesses  the  power  to  compro- 
mise felonies. 

ERIIOR  to  the  Second  District  Court  for  Albany  County. 

The  plaintiff  in  error,  who  was  prosecuting  witness  in  a 
case  of  felony,  on  the  preliminary  examination  before  a  jus- 
tice of  the  peace,  allowed  judgment  to  be  entered  against 
him  for  costs,  and  the  proceedings  to  be  dismissed  ;  but  find- 
ing, after  the  time  had  expired  for  appealing  from  the  jus- 
tice's judgment,  that  the  costs  taxed  were,  as  he,  the  prose- 
cuting witness  deemed,  excessive,  he  attempted  to  have  the 
matter  reviewed  on  petition  to  the  district  court. 

J.  W.  Kingman,  for  plaintiff  in  error. 

The  statute  of  1873,  sees.  511,  512,  provides  for  the  rem- 
edy sought  in  this  case,  both  in  the  district  and  in  the  su- 


278  IVINSON  v.  PEASE.  [Sup.  Ct. 


Argument  for  Defendant  in  Error. 


preme  courts.  Section  25  of  the  criminal  code  provides 
to  whom  the  justice  shall  direct  his  warrant,  and  gives  him 
no  power  or  discretion  to  direct  it  to  any  one  else.  Page 
163,  sec.  5,  chap.  4,  statutes  of  1869,  prescribes  the  duties 
of  sheriffs,  and  does  not  include  the  service  of  warrants 
from  a  justice  of  the  peace.  Sees.  2  and  9  of  chap.  33,  pre- 
scribe the  fees  of  sheriffs  and  constables,  and  a  different 
rate  is  provided  for  each,  in  which  the  sheriff  is  allowed  a 
higher  rate  than  a  constable. 

The  statute  nowhere  empowers  a  justice  of  the  peace  to 
tax  costs  against  the  complaining  witness,  in  cases  of  felony ; 
and  even  if  in  this  case  he  promised  to  pay  costs,  it  could 
afford  no  ground  of  suit  or  claim  against  him,  because  it 
would  be  a  violation  of  sec.  89  of  the  Crimes  Act,  in  rela- 
tion to  compounding  felonies,  and  therefore  void.  But  the 
flagrant  wrong  in  this  case  consists  in  the  unnecessary  and 
reckless  accumulation  of  costs,  to  the  great  oppression  of 
the  plaintiff,  if  he  has  to  pay  them,  and  to  the  willful  plun- 
dering of  the  public,  if  the  county  must  bear  the  burden. 

The  county  attorney  cannot  charge  fees  in  a  case  where 
there  is  no  trial,  "  for  examination."  Such  fees  were  allowed 
in  each  of  the  five  cases,  in  this  bill  of  costs,  amounting  to 
seventy-five  dollars :  Grim.  Proc.  Act,  sec.  78. 

Bramel,  Brown  and  Johnson,  for  defendants  in  error. 

This  is  an  appeal  from  a  judgment  of  the  district  court 
in  an  original  case  commenced  in  that  court,  to  supervise 
the  action  of  a  justice  and  modify  his  judgment  as  to  costs. 

Defendants  rest  this  case  on  two  settled  propositions  of 
law,  which  have  no  reference  to  the  merits  of  the  justice's 
judgment:  1.  The  evidence  having  been  incorporated  into 
the  transcript,  the  presumption  is  that  there  was  evidence 
to  support  the  judgment  of  the  court  below.  The  presump- 
tion is  that  the  judgment  was  right,  unless  error  affirma- 
tively appears ;  2.  This  seems  to  have  been  an  original  case 
in  which  the  court  was  asked  to  revise  the  justice's  judg- 


March,  1875.]  IVINSON  v.  PEASE.  279 

Opinion  of  the  Court — Carey,  J. 

merit;  and  it  is  submitted  that  the  court  had  no  jurisdiction 
to  do  so,  unless  the  case  came  up  in  the  manner  provided 
by  law,  and  that  it  so  affirmatively  appears  it  did  not ;  arid 
this  court  should  render  the  same  judgment  that  should 
have  been  rendered  in  the  court  below,  to  wit :  Dismissal  of 
the  bill,  or  petition  as  it  is  called. 

By  the  Court,  CAREY,  J. :  This  is  what  purported  to  be 
a  proceeding  commenced  before  associate  Thomas,  in  vaca- 
tion, to  re-examine,  recharge  and  retax  certain  costs  taxed 
by  L.  D.  Pease,  justice  of  the  peace  (one  of  the  defendants 
in  error),  in  Albany  county,  in  certain  prosecutions  which 
had  been  instituted  by  the  plaintiff  in  error  against  one  Thos. 
Alsop  and  others,  charging  them  with  the  commission  of  cer- 
tain felonies. 

The  record  in  this  case  presents  a  strange  state  of  facts. 
It  appears  that  after  the  said  prosecutions  for  felony  had 
been  partially  examined,  the  witnesses  for  the  prosecution 
were  induced  to  leave  the  court-room,  and  that  the  prose- 
cuting witness,  the  prosecuting  attorney  and  the  justice  of 
the  peace  then  and  there  agreed  that  the  said  prosecution 
should  be  dismissed,  and  that  the  prosecuting  witness,  Ed- 
ward Ivinson,  should  pay  all  costs.  The  costs  were  accord- 
ingly taxed  against  the  said  Edward  Ivinson,  and  execution 
issued  therefor.  It  was  to  retax  the  costs  that  this  proceed- 
ing was  commenced.  The  district  court  affirmed  the  action 
of  the  justice. 

The  statute  provides  the  manner  in  which  the  judgments 
of  a  justice  may  be  reversed  and  affirmed,  and  we  are  satis- 
fied that  the  proceedings  instituted  before  the  judge  in  this 
case  did  not  give  him  jurisdiction  of  the  case. 

We  are  also  satisfied  that  a  justice,  prosecuting  witness 
and  prosecuting  attorney  do  not  possess  the  power  to  com- 
promise felonies.  That  the  statute  authorizes  the  taxation 
of  costs  in  misdemeanors  against  the  prosecuting  witness, 
but  not  in  felonies,  but  in  this  case  the  prosecuting  witness 
agreed  to  pay  the  costs.  That  there  was  an  erroneous  and 


280  IviNsoN  v.  PEASE.  [Sup.  Ct. 

Opinion  of  the  Court — Carey,  J. 

illegal  taxation  of  costs.  We  have  no  doubt  that  a  court  of 
equity,  on  the  institution  of  proper  proceedings,  would  give 
the  plaintiff  in  error  such  relief  as  his  case  may  merit,  or  if 
there  is  a  collection  of  improper  costs,  that  there  may  be  a 
recovery  had  in  a  court  of  law. 

All  proceedings  in  this  case  dismissed. 


REPORTS  OF  CASES 

DETERMINED  IN 

THE   SUPREME   COURT 


WYOMING  TERRITORY. 
MARCH  TERM,  1876. 


BATH  v.  INGERSOLL. 

REPLEVIN. — Where  the  plaintiff  in  a  suit  in  replevin  failed  to  prove  on 
trial  the  material  allegations  of  his  petition,  and  the  court,  ou  mo- 
tion of  defendant,  ordered  a  nonsuit:  Held,  that  the  granting  of 
such  order  was  not  erroneous. 

IDEM. — The  defendant  in  an  action  in  replevin,  having  obtained  against 
the  plaintiff  an  order  of  nonsuit,  may  proceed  to  impanel  a  new  jury 
in  the  same  cause,  and  to  assess  the  defendant's  damages. 

ERROR,  to  the  District  Court  for  Albany  County. 

The  plaintiff  in  error  brought  an  action  in  replevin  in 
the  district  court  for  Albany  county  to  recover  posses- 
sion of  a  wagon,  harness,  and  other  personal  property. 
The  cause  came  on  for  trial  at  the  Albany  county  Au- 
gust term  of  the  district  court,  before  Chief  Justice  Fisher 
and  a  jury  for  trial.  After  the  plaintiff  rested  his  case,  cer- 
tain evidence  having  been  offered  by  him  being  excluded  by 
the  court,  the  defendant  moved  for  a  nonsuit.  The  motion 
was  granted.  The  jury  were  discharged,  a  new  jury  was 
impaneled,  the  plaintiff  was  excluded  from  offering  any  fur- 
ther evidence  and  from  cross-examining  the  defendant's 

281 


282  BATH  v.  INGEKSOLL.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

witnesses,  and  the  jury,  after  being  instructed  by  the  court, 
brought  in  a  verdict  for  the  defendant  and  against  the 
plaintiff  for  the  amount  of  the  value  of  said  personal  prop- 
erty set  forth  in  the  petition,  to  all  of  which  rulings  and 
acts  of  said  district  court  said  plaintiff,  by  his  counsel,  duly 


/i  .i    . 
J.  W.  Kingman,  for  plaintiff  in  error: 

I.  The  action  of  replevin,  under  our  code,  is  an  action  to 
try  the  title  to  personal  property,   and  consequently  both 
parties  are  plaintiffs  and  each  in  turn  defendants.     Either 
party  may  recover  the  entire  property,  or  each  may  recover 
a  part  of  it.     Each  party  must  recover  on  some  title  shown 
to  be  in  himself,  not  on  the  want  of  a  title  in  his  opponent  : 
See  Code,  title  Replevin  ;  2  Par.  on  Gon.  477. 

II.  There  was  evidence  tending  to  show  title  in  the  plain- 
tiff, which  should  have  been  given  to  the  jury  ;  and  it  was 
error  to  order  a  nonsuit  :  14  Wis.  553  ;  6  Pick.  117  ;  13  Wis. 
175  ;  17  Mass.  249. 

III.  It  was  error  to  discharge  the  first  jury,  and  also  error 
to  impanel  a  new  one.     The  plaintiff  was  deprived  of  his 
right  of  challenge. 

IV.  It  was  error  to  deprive  the  plaintiff  of  the  right  to 
cross-examine  defendant's  witnesses  :    26   111.   298  ;  8  Plor. 
446  ;  7  Clark,  478  ;  1  Head  (Tenn),  520  ;  5  Clark  (Iowa), 
463,  5  Post.  (N.  H.)  229  ;  2  Par.  on  Cont.  479.     Although 
the  plaintiff  is  nonsuited  in  an  action  of  replevin,  he  may 
still  offer  testimony  to  prove  ownership  of  the  property  in 
himself,  upon  inquiry  into  the  right  of  the  defendant's  pos- 
session:" 1   Green.    (Iowa)   13;    7   Blackf.  298.     "On  an 
inquest  of  damages,  the  defendant,  after  having  defaulted, 
may  cross-examine  plaintiff's  witnesses,  introduce  evidence 
in  mitigation  of  damages,  and  address  the  jury."     8  Plor. 
446. 

V.  It  was  error  to  refuse  plaintiff  the  right  to  offer  evi- 
dence on  the  question  of  damages  :  See  authorities  above 
cited. 


March,  1876.J  BATH  v.  INGEUSOLL.  283 

Argument  for  Defendant  in  Error. 

VI.  It  was  error  to  prevent  him  from  addressing  the  jury : 
Seney's  Code,  sec.  184,  and  notes. 

M.  G.  Brown,  for  defendant  in  error. 

This  cause  comes  into  this  court  on  petition  in  error  from 
district  court,  second  judicial  district.  The  plaintiff  in  error 
was  plaintiff  in  court  below.  Action,  replevin.  After  the 
plaintiff  had  submitted  his  evidence,  the  defendant  moved 
the  court  for  nonsuit,  which  said  motion  was  sustained,  and 
judgment  of  nonsuit  ordered  by  the  court,  whereupon  a 
jury  was  impaneled  to  assess  damages  for  defendant,  and 
a  judgment  entered  upon  their  verdict  in  favor  of  the  de- 
fendant. To  reverse  this  judgment,  this  case  is  brought 
here  on  error. 

The  chief  error  complained  of  by  plaintiff  is  this,  to  wit : 
that  the  court  below  had  no  right  to  grant  nonsuit  in  an 
action  in  replevin,  and  that  the  proceedings  of  the  court  in 
so  granting  nonsuit,  impaneling  jury  to  assess  damages,  etc., 
were  irregular  and  not  warranted  by  law.  An  action  in 
replevin  is  a  common  law  action,  and  like  every  other  action 
at  common  law,  judgment  by  nonsuit  is  proper.  That 
under  the  code,  the  proceedings  in  replevin,  where  non- 
suit is  adjudged  by  the  court,  must  be  the  same  as  where 
there  is  judgment  for  the  defendant  on  demurrer,  or  the 
plaintiff  otherwise  fail  in  the  action :  See  Code,  1873, 
sec.  179,  p.  54.  That  there  was  no  error  by  the  court  in 
granting  nonsuit  (if  the  evidence  was  such  as  to  warrant  a 
judgment  of  this  character  in  any  common  law  case),  and 
impaneling  jury  to  assess  damages :  see  2  Ohio,  Reed  v. 
Carpenter  ;  2  Ohio,  87. 

The  next  question  of  importance  to  be  determined  here 
is  this,  to  wit :  If  judgments  of  nonsuit  in  actions  of  replevin 
are  lawful,  was  the  evidence  offered  in  his  case  of  such  a 
character  as  to  warrant  judgment  of  nonsuit.  We  believe 
a  motion  for  nonsuit  to  be  in  the  nature  of  a  demurrer 
to  the  evidence  offered  by  the  plaintiff.  That  the  motion 


284  BATH  v.  INGERSOLL.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

admits  every  matter  as  proved  that  the  evidence  has  a 
tendency  to  establish,  and  that  a  nonsuit  can  only  be 
granted  when  there  has  been  an  entire  failure  of  evidence 
on  some  material  allegation  indispensable  to  the  right  of 
action :  11  Wheaton,  320. 

We  accept  this  theory  of  the  law  as  most  favorable  to 
the  plaintiff  in  error,  and  because  it  is  supported  by  au- 
thority :  See  Ells  £  Morton  v.  Ohio  Life  Ins.  $  Trust  Co.,  4 
Ohio  St.  644;  17  Ohio,  40-43,  1  McLean,  309;  3  Barn.  & 
Cress.  462. 

On  motion  of  nonsuit  the  court  will  consider  the  whole 
testimony  of  plaintiff,  whether  given  on  cross-examination 
or  in  chief:  30  Maine,  117. 

There  is  absolutely  no  evidence,  as  shown  by  the  record, 
having  a  tendency  even  to  establish  the  allegations  of  plain- 
'  tiff's  petition,  therefore  no  error  by  court  in  sustaining  motion 
for  nonsuit.  We  have  referred  to  all  the  errors  complained 
of  that  we  believe  worthy  of  comment.  We  believe  the 
judgment  of  the  court  below  should  be  affirmed,  and  the 
defendant  be  allowed  the  highest  percentage  permitted  by 
law  as  damages  and  costs  in  appeal. 

By  the  Court,  THOMAS,  J. :  There  are  several  grounds  of 
error  alleged  in  plaintiff's  petition  in  error.  The  court  be- 
low certainly  acted  properly  in  excluding  certain  evidence 
of  Dawson  and  another,  for  it  would  have  been  at  best  hear- 
say, and  nothing  but  hearsay,  evidence.  The  district  court 
is  sustained  by  excellent  authorities  upon  the  question,  that 
in  an  action  of  replevin  a  motion  of  nonsuit  may  properly  be 
granted,  while  in  this  instance,  as  the  plaintiff's  evidence  not 
only  failed  to  show  title  in  the  plaintiff,  but  also  proved  that  the 
plaintiff  had,  some  months  prior  to  the  commencement  of  the 
action  in  the  district  court,  parted  with  all  title  thereto.  We 
can  therefore  discover  no  error  in  the  granting  of  the  motion 
for  a  nonsuit. 

The  question  of  inpaneling  another  jury  is  something  of 
a  novel  one.  To  us  it  seems  that  it  is  fully  sustained  by 


March,  1876.]  ALSOP  v.  HUTTON.  285 


Statement  of  Facts. 


the  provisions  of  our  code,  and  that  it  is  a  much  better 
practice  than  the  one  of  having  the  damages  assessed  by  the 
jury  first  impaneled,  they  having  heard  all  the  evidence  for 
the  plaintiff,  and  liable  to  be  at  least  slightly  biased  by  the 
same,  while  they  would  have  no  right  to  consider  nor  regard 
any  portion  thereof.  While  there  may  be  a  difference  of 
opinion  among  the  members  of  this  court  as  to  the  right  of 
the  plaintiff,  after  sustaining  a  nonsuit,  to  appear  and  offer 
evidence  or  cross-examine  witnesses  upon  the  assessment  of 
damages,  it  is  apparent,  from  an  examination  of  the  whole 
record  in  this  case,  that  no  injury  or  injustice  can  have  been 
done  the  plaintiff  as  our  replevin  law  now  stands.  Under 
the  general  rule,  therefore,  there  could  be  no  reason  for  re- 
versing this  judgment  upon  that  ground,  even  had  the  dis- 
trict court  erred  in  refusing  to  allow  the  plaintiff  to  appear 
at  the  assessment  of  damages. 

Judgment   affirmed,   and  writ  of  procedendo   ordered   to 
Albany  county. 


ALSOP  v.  HUTTON. 

EVIDENCE. — Although,  upon  a  trial  of  a  cause,  immaterial  evidence  is 
admitted  to  the  jury,  the  court  of  errors  will  not  reverse  the  judg- 
ment, unless  it  clearly  appears  that  the  opposite  party  has  been 
prejudiced  or  injured  thereby. 

INSTRUCTIONS  TO  JUKY.— While  the  district  court  may  have  erred  in 
refusing  to  give  to  the  jury  a  certain  instruction  requested  by  de- 
fendant, as  to  the  form  of  their  verdict,  if  they  found  for  the  de- 
fendant in  an  action  for  replevin,  yet  if  the  jury  find  for  the  plain- 
tiff, the  defendant  cannot  be  injured  by  the  refusal  of  the  court  to 
give  such  instruction,  and  the  judgment  should  not  be  interfered 
with. 

ERROR  to  the  District  Court  of  Albany  County. 

This  was  an  action  in  replevin,  brought  in  the  district 
court  of  Albany  county,  to  the  February  term,  A.  D.  1875, 


286  ALSOP  y.  HUTTON.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

by  Charles  H.  Hutlon  v.  Thomas  Alsop  and  George  Alsop, 
for  the  recovery  of  a  certain  lot  of  fencing  poles,  posts  and 
wires  for  the  construction  of  a  fence  ;  that  one  of  the  em- 
ployees of  Thomas  Alsop  tore  down  the  said  fence  and 
hauled  the  poles,  posts,  etc.,  to  the  premises  occupied  by 
George  Alsop;  that  upon  the  poles,  posts,  etc.,  being  so 
hauled  away,  Mr.  Hutton  commenced  his  action  in  the  dis- 
trict court  against  both  the  Alsops,  and  a  writ  of  replevin 
was  placed  in  the  hands  of  the  sheriff  of  Albany  county,  and 
he  served  the  said  writ  and  took  possession  of  the  property 
described  in  the  writ.  The  case  was  tried  in  the  district 
court,  and  the  jury  found  for  the  plaintiff  in  that  court,  and 
assessed  his  damages  at  twenty-five  dollars  against  George 
Alsop,  one  of  the  defendants,  and  found  that  Thomas  Alsop 
was  not  a  party  to  the  action.  The  defendant,  in  the  dis- 
trict court,  reserved  exceptions  to  the  admission  of  certain 
evidence,  only  claiming,  however,  that  the  evidence  offered 
and  objected  to  was  irrelevant  and  immaterial,  and  not  that 
it  prejudiced  the  rights  of  defendants.  The  principal  excep- 
tions, and  those  mostly  relied  upon,  were  to  the  instructions 
of  the  court  on  behalf,  and  others  refused  as  asked  for,  on 
the  part  of  the  defendants. 

M.  C.  Brown,  for  the  plaintiff  in  error. 

This  case  is  brought  here  by  petition  in  error  from  the 
district  court  of  the  second  judicial  district  of  Albany 
county.  The  action  in  court  below  was  replevin,  brought 
by  Charles  H.  Hutton,  defendant  in  error,  against  Thomas 
Alsop  and  George  Alsop,  to  recover  the  possession  of  a 
certain  lot  of  fencing  alleged  to  be  in  the  said  defendants' 
possession  and  wrongfully  detained  by  these  said  defendants. 
The  answer  denies  all  the  allegations  of  the  petition,  sets 
up  property  in  a  third  party,  to  wit :  Mclntosh,  and  claims 
damages  for  loss  of  time,  etc.,  for  defending  suit  and  for 
attorney's  fees.  Verdict  was  returned  by  the  jury  on  issue 
joined  against  George  Aslop  for  twenty-five  dollars.  Motion 


March,  1876.]  ALSQP  v.  HUTTON. 


Opinion  of  the  Court— Fisher,  C.  J. 


to  set  aside  said  verdict  was  refused  by  the  court  below, 
and  judgment  ordered  by  the  court  on  the  said  verdict  and 
for  costs  of  suit  To  reverse  this  judgment  against  George 
Alsop  this  action  is  brought  here. 

The  plaintiff  in  error  to  recover  this  judgment  will  rely 
chiefly  on  .this  point,  to  wit:  That  the  court  below  erred  in 
refusing  to  set  aside  the  verdict  and  grant  a  new  trial  of 
this  action,  because  the  verdict  is  contrary  to  the  law  as 
given  by  the  court  in  its  instruction,  and  against  the 
weight  of  evidence  in  the  case.  It  is  admitted  that  a  court 
will  not  disturb  the  verdict  of  a  jury,  unless  the  jury  have 
manifestly  returned  the  verdict  against  the  instructions  of 
the  court  and  against  the  weight  of  evidence  in  the  case  ; 
but  if  the  verdict  is  so  against  the  evidence,  and  the  law  as 
given  by  the  court,  it  is  the  simple  duty  of  the  court  to  set 
it  aside,  and  it  is  error  if  the  court  fails  so  to  do,  and  the 
judgment  should  be  reversed.  The  record  evidence  shows  : 
Three  witnesses  swear  that  George  ALsop,  plaintiff  in  error, 
was  not  in  possession  of  the  property,  and  there  was  no 
right  of  action  against  him,  and  no  one  swears  that  he  was 
in  possession  or  connects  him  with  unlawful  detention  of 
property  in  question. 

There  is  no  evidence  showing  demand  on  either  of  the 
Alsops  for  property  before  suit,  and  no  wrongful  taking, 
therefore  no  action  could  be  maintained  against  either  of 
the  Alsops. 

J.  W.  King  man,  for  the  defendant  in  error. 

By  the  Court,  FISHER,  C.  J. :  The  record  in  this  case 
does  not  show,  nor  indeed  is  it  alleged,  that  the  ruling  of 
the  court  in  permitting  the  evidence  complained  of  to  go  to 
the  jury,  in  any  way  operated  to  the  injury  of  the  defendants 
in  this  action,  and  all  that  can  be  said  against  the  action  of 
the  court  in  this  respect,  is  that  immaterial  evidence  was 
admitted.  And  by  the  one  hundred  and  thirty-fourth  sec- 
tion of  the  civil  code  of  this  territory,  it  is  provided,  that 


288  ALSOP  v.  HUTTOK.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

"  The  court  in  every  stage  of  action  must  disregard  any 
error  or  defect  in  the  pleading  or  proceedings,  which  does 
not  affect  the  substantial  rights  of  the  adverse  paity,  and  no 
judgment  shall  be  reversed  or  affected  by  reason  of  such 
error  or  defect." 

So  that  we  fail  to  see  how  the  aid  of  this  court  can  be 
invoked  to  cure  the  defect  complained  of.  The  exceptions 
to  the  instructions  asked  for  on  the  part  of  the  plaintiff,  and 
given  we  think,  presents  no  error  that  calls  for  our  interfer- 
ence. And  those  which  the  court  refused  to  give  as  asked 
for  on  the  part  of  defendants,  although  not  given  as  asked 
for,  are  substantially  given  by  the  court  in  its  instructions 
to  the  jury  at  the  close  of  the  argument ;  so  that  everything 
asked  for  is  given  except  one  in  which  the  court  was  asked 
to  instruct  the  jury  to  find  attorney  fees  for  defendants  if 
they  should  obtain  a  verdict.  It  is  true  that  section  180  of 
the  code  of  1873  allows  and  requires  defendants'  attorney 
fee  when  the  jury  finds  for  defendant,  either  that  he  had  at 
the  time  of  the  commencement  of  the  action  the  right  of 
property  or  the  right  of  possession ;  and  while  we  do  not 
clearly  see  why  the  court  below  refused  to  give  this  instruc- 
tion, yet,  inasmuch  as  the  jury  found  for  the  plaintiff,  we 
cannot  see  that  the  defendant  has  any  cause  to  complain  of 
the  court  in  refusing  to  give  the  instruction. 

We  therefore  find  nothing  in  the  record  of  which  the  de- 
fendant has  any  legal  grounds  of  complaint,  the  whole  mat- 
ter having  been  fairly  committed  to  the  jury  who  found  under 
the  facts  as  given  to  them. 

The  judgment  is  affirmed. 


March,  1876.]  JENKINS  v.  CITY  OF  CHEYENNE.  289 


Statement  of  Facts. 


JENKINS  v.  THE  CITY  OF  CHEYENNE. 

CIVIL  ACTION.  —  Under  the  code  of  procedure  of  Wyoming  territory,  an 
action  in  which  the  city  of  Cheyenne,  a  municipal  corporation, 
prosecutes  as  plaintiff  to  recover  a  fine  or  penalty,  under  the  ordi- 
nances of  the  city,  is  a  "  civil  action." 

PRACTICE—  APPEAL  FKOM  JUSTICES'  COURTS.—  In  taking  an  appeal 
from  the  judgment  of  a  court  of  a  justice  of  the  peace,  the  require- 
ments of  the  statute  must  be  strictly  and  literally  complied  with  as 
to  the  affidavit  and  undertaking  by  the  appellant,  or  his  appeal 
on  motion  be  stricken  from  the  docket  of  the  appellate  court. 


ERROR  to  the  District  Court  for  Laramie  County. 

This  was  an  action  originally  commenced  upon  informa- 
tion before  Thomas  M.  Fisher,  a  justice  of  the  peace  in 
and  for  Laramie  county,  charging  defendant  (now  plaintiff 
in  error),  with  keeping  a  certain  bawdy-house,  etc.  The 
record  shows  that  a  jury  trial  was  had,  under  the  provisions 
of  the  law  allowing  jury  trials  before  justices  of  the  peace, 
and  that  the  said  defendant  was  adjudged  guilty,  and  the 
penalty  of  one  hundred  dollars  affixed  against  her.  That 
the  defendant  gave  notice  of  an  appeal.  That  an  appeal 
was  taken,  but  not  entered,  on  or  before  the  second  day  of 
the  next  term  of  the  district  court.  On  the  fourteenth  of 
December,  the  counsel  for  the  city  of  Cheyenne,  Mr.  Street, 
moved  the  court  to  dismiss  the  appeal,  for  the  reason  of  de- 
fects therein  apparent,  which  motion,  after  argument,  was 
overruled,  under  the  provisions  of  the  statute,  which  give 
the  appellant  power  to  correct  defects  in  appeals  at  any  time 
before  the  case  is  called  for  argument  or  trial.  The  city  at- 
torney also  moved  to  have  the  case  changed  from  the  crim- 
inal to  the  civil  docket,  which  motion  was  sustained. 

On  the  twenty-second  of  December,  a  motion  was  filed  by 
Mr.  Street,  attorney  for  plaintiff,  to  dismiss  the  appeal,  be- 
cause no  proper  bond  was  filed  nor  affidavit  made,  as  re- 
quired by  the  surety  in  the  bond  as  provided  by  the  statute. 
On  the  twenty-seventh  of  December,  this  motion  was  sus- 
19 


290  JENKINS  v.  CITY  OF  CHEYENNE.        [Sup.  Ct. 


Argument  for  Plaintiff  in  Error. 


tained  and  the  appeal  was  dismissed,  and  the  case  remanded 
to  the  justice  of  the  peace  for  further  proceedings  upon  the 
said  case.  A  petition  in  error  was  then  filed,  and  the  case 
duly  brought  into  this  court  for  review,  and  the  following 
errors  assigned : 

1.  Because  the  court  erred  in  sustaining  the  motion  of  the 
city  of  Cheyenne   (now  defendant)  to  transfer  said  cause 
from  the  criminal  to  the  civil  docket,  and  ordering  the  same 
to  be  entered  on  said  docket,  and  set  down  for  trial  therein. 

2.  Because  the  court  erred  in  sustaining  the  motion  of 
the  said  defendant  to  strike  off  and  dismiss  the  appeal  of 
the  plaintiff,  previously  taken  from  a  justice's  court  to  the 
said  district  court  of  the  first  judicial  district  of  Wyoming, 
on  the  ground  and  for  the  reason  that  no  sufficient  under- 
taking in  appeal  had  been  made  and  filed,  that  the  surety 
named  in  the  said  undertaking  had  not  made  affidavit  to  the 
same  as  required  by  law,  and  for  the  reason  that  the  appeal 
in  said  case  taken  was  not  taken  and  perfected  in  the  manner 
prescribed  by  law  for  civil  cases. 

3.  Because  the  court  erred  in  making  the  final  order,  and 
rendering  judgment  in  the  said  cause  that  the  appeal  in  the 
cause,  taken   by  plaintiff,  be  dismissed,  and   remanded   by 
procedendo  to  the  justice's  court   for   further  proceedings 
therein. 

.E.  P.  Johnson  and  W.  P.  Carroll,  for  plaintiff  in  error. 

This  case  comes  up  from  the  first  district,  and  the  facts 
are  that  plaintiff  was  complained  of  before  Justice  Fisher 
as  police  magistrate  of  the  city  of  Cheyenne  for  violating 
a  city  ordinance  "  concerning  offences  in  the  nature  of  mis- 
demeanors," etc.  Whereupon  she  was  arrested,  tried,  and 
convicted,  and  thereafter  appealed  to  the  district  court  in 
accordance  with  the  statutes  governing  appeals  in  criminal 
cases.  A  motion  was  made  to  dismiss  the  appeal  by  the 
appellee,  but  it  was  denied.  The  court  then  transferred 
the  case  to  the  civil  docket,  after  which  another  motion  to 


March,  1876.]  JENKINS  v.  CITY  OF  CHEYENNE.  291 

Argument  for  Plaintiff  in  Error. 

dismiss  the  appeal  was  made,  for  the  reason  that  the  bond 
required  on  appeal  in  civil  cases  was  not  sufficient,  and  the 
practice  in  civil  cases  had  not  been  complied  with.  The 
motion  was  sustained  and  the  case  dismissed.  Plaintiff 
in  error  alleges  that  there  was  error  in  said  ruling : 

I.  Because  the  action  was  criminal  and  not  a  civil  action, 
and   the  defendant  in  the  case   proceeded   properly  in  her 
appeal  from  the  justice  under  the  code  relating  to  criminal 
practice  in  the  justice  courts :  Bishop  on  Stat.  Crimes,  sees. 
403-7  ;  Dillon  on  Mun.  Corp.  sees.  301-2,  343-5,  357-69, 
inclusive  ;  42  Pa.  St.  89-94 ;  16  Pick.  504 ;  17  Wise.  26.     It 
will  be  seen  that  the  seeming  conflict  of  authorities  upon 
the  question  has  referred  to  questions  of  constitutional  law 
in  the  states,  and  involves  only  the  meaning  of  the  consti- 
tutional and  statutory  provisions  concerning  trials  by  jury. 
They  are  not  in  point,  pro  nor  con,  in  the  determination  of 
the   question   as  to  whether  the   appeal   from   the    justice 
should   have  been  dismissed.     The  case  is  treated  from  a 
criminal  standpoint  by  both  statute  and  ordinance,  and  by 
the  municipal  court.     The  appeal  was  allowed  in  conformity 
with  the  criminal  practice :   Laws  of  1869,  p.  132,  sec.  114 ; 
Id.  699,  subcl.  16;  Id.  704,  sec.  33;    Laws  of  1871,  p.  73, 
sec.  35. 

The  city  having  invoked  the  criminal  jurisdiction  of  the 
justice  court,  it  should  not  have  been  heard  to  question  its 
procedure  to  the  prejudice  of  the  defendant  in  the  district 
court  on  principle.  And  the  action  of  the  court  was  in 
clear  violation  of  law  to  the  prejudice  of  the  plaintiff  in 
error :  Laws  of  1871,  p.  74,  sec.  40. 

II.  Changing   the    case    from    the   criminal  to  the  civil 
docket  was  in  itself  immaterial,  as  it  could  not  change  the 
rights  of  parties.     Upon  the  transfer  the  record  shows  an 
attempt  on  the  part  of  plaintiff  in  error  to  file  the  affidavit 
and  bond  as  an  appeal  in  civil  cases  to  conform  to  the  judg- 
ment of  the  court,  and  the  law  was  substantially  complied 
with  in  that  respect,  except  that  the  affidavit  required  by 
sureties  to  the  undertaking  was  not  made :  Laws  of  1871,  p. 


292  JENKINS  v.  CITY  OF  CHEYENNE.         [Sup.  Ct. 

Opinion  of  the  Court  —Fisher,  C.  J. 

67,  sec.  203.  And  for  that  reason  the  appeal  was  finally 
dismissed.  White  it  is  submitted  as- error  to  have  the  case 
so  treated  by  the  court,  it  is  also  submitted  that  the  under- 
taking is  not  vitiated  by  the  failure  to  justify  for  while  the 
officer  taking  it  may  be  responsible  for  the  failure  to  de- 
mand it,  it  does  not  by  any  construction  or  consideration 
relieve  the  surety  of  liability. 

Tlivmas  J.  Street,  for  defendant  in  error. 

In  addition  to  the  authorities  presented  by  the  brief  of 
the  plaintiff  concerning  the  character  of  the  proceeding, 
and  whether  the  same  is  civil  or  criminal,  I  desire  to  refer 
to  an  ordinance  passed  by  the  city  of  Cheyenne,  July  17, 
1874,  a  certified  copy  of  which  is  herewith  furnished  for  the 
use  of  the  court.  Under  a  law  passed  at  the  last  session  of 
the  legislature  it  is  provided  that  all  the  courts  of  this  ter- 
ritory shall  take  judicial  notice  of  all  ordinances  passed  by 
said  city  of  Cheyenne  upon  the  presentation  thereof  attested 
by  the  clerk,  and  certified  to  have  been  passed  and  published 
according  to  law. 

By  the  Court,  FISHER,  C.  J. :  The  first  error  complained 
of  was  the  transferring  this  cause  from  the  criminal  to  the 
civil  docket.  We  do  not  see  how  the  rights  of  the  plaintiff 
in  error  could  be  seriously  invaded  by  the  order  of  the  dis- 
trict court  in  changing  the  case  from  the  criminal  docket, 
and  where  no  injury  results  from  the  action  of  the  court, 
errors  are  to  be  overlooked.  But  apart  from  this  there  was 
no  error,  as  will  be  fully  seen  by  reference  to  the  eighth  and 
ninth  sections  of  chapter  75  of.  the  laws  of  1869,  and  are  as 
follows :  "  Sec.  8.  A  criminal  action  is  one  presecuted  by 
the  territory  as  a  party  against  a  person  charged  with  a 
public  offense,  for  the  punishment  thereof."  Sec.  9.  "  Every 
other  is  a  civil  action."  This,  to  a  reasonable  mind,  is 
enough,  but  we  may  go  a  little  further,  and  say  that  the 
mode  usually  resorted  to  for  the  recovery  of  penalties  for 


March,  1876.]  JENKINS  v.  CITY  OF  CHEYENNE.  293 

Opinion  of  the  Court — Fisher,  €.  J. 


the  violation  of  municipal  ordinances  is  by  civil  actions. 
There  are  many  both  common  law  and  statutory  offenses 
which  are  quasi  criminal  actions,  and  which  incur  criminal 
consequences,  which  are  nevertheless  to  be  proceeded  in  as 
civil  actions. 

The  second  error  complained  of  is  the  striking  off  of  the 
appeal  or  rather  dismissing  the  appeal  on  the  ground  of  the 
insufficiency  of  the  undertaking.  A  simple  reference  to  the 
requirements  of  section  67  of  the  justice  code  of  1871  which 
requires  an  undertaking  that  the  appellant  will  prosecute 
his  (or  her)  appeal  to  effect.  That  if  judgment  is  rendered 
against  him  (or  her)  on  the  appeal,  or  his  (or  her)  appeal 
be  dismissed,  he  will  satisfy  the  judgment  and  costs ;  that 
the  appeal  has  not  been  taken  for  delay,  but  that  it  is  taken 
in  good  faith,  believing  that  injustice  has  been  done,  etc. ; 
and  it  is  required  that  the  surety  must  be  a  resident -of  the 
county  and  a  property  holder.  All  this  should  appear  af- 
firmatively. And  by  another  provision  it  is  required  that 
the  surety  must  make  an  affidavit  to  his  sufficiency.  This 
record  fails  to  show  that  any  of  these  requirements  were 
complied  with,  consequently  no  such  proceedings  were  had 
as  would  justify  the  court  in  overruling  the  motion  to  dis- 
miss the  appeal. 

The  third  error  assigned  is  so  involved  in  what  has  al- 
ready been  said,  that  we  do  not  deem  it  necessary  to  pass 
upon  it. 

The  proceedings  of  the  district  court  are  affirmed. 


294  COUNTY  COMMISSIONERS  v.  BOSWELL.  [Sup.  Ct. 


Statement  of  Facts. 


BOARD     OF    COMMISSIONERS     OF    ALBANY 
COUNTY  v.  N.  K.  BOSWELL. 

SHERIFFS'  FEES.— Under  the  laws  of  Wyoming  for  1869  the  allowance 
to  the  sheriffs  of  the  respective  counties,  of  one  dollar  per  day  for 
the  custody  and  subsistence  of  prisoners,  is  one  of  the  perquisites 
of  the  office,  as  well  as  a  remuneration  for  services  rendered  and 
articles  furnished,  and  county  commissioners  have  no  power  to  de- 
prive a  sheriff  of  the  same. 

ERROR  to  the  District  Court  for  Albany  County. 

This  was  an  action  brought  from  Albany  county,  second 
judicial  district,  at  August  term  of  said  court,  A.  D.  1873. 

The  record  shows  that  M.  K.  Boswell  commenced  his 
action  in  the  court  below  for  the  recovery  of  two  thousand 
seven-  hundred  and  twenty-two  dollars,  alleged  to  be  due 
him  as  sheriff  and  keeper  of  prisoners  in  the  Albany  county 
jail  during  parts  of  the  years  1869, 1870  and  1871,  amounting 
in  the  aggregate  as  above  stated,  with  a  credit  on  said  account 
in  the  sum  of  one  thousand  and  forty-one  dollars  and  fifty- 
six  cents,  leaving  a  balance  due  said  plaintiff  in  the  sum  of 
one  thousand  six  hundred  and  eighty  dollars  and  forty-four 
cents,  with  interest  up  to  the  date  of  the  trial  and  judgment. 
The  plaintiff,  Boswell,  filed  his  petition  in  the  district  court, 
to  which  the  board  of  county  commissioners  filed  a  general 
demurrer,  which  was  overruled,  to  which  ruling  they  re- 
served their  exception.  The  defendants  then  filed  their 
answer,  denying  the  whole  indebtedness,  and  setting  up 
specially  that  they,  the  said  board  of  commissioners,  had 
entered  into  a  contract  with  the  military  authorities  at  Fort 
Sanders  for  the  keeping  and  subsisting  of  the  prisoners. 

The  plaintiff  moved  the  court  to  strike  from  defendants' 
answer  said  special  matter,  which  motion  was  sustained,  and 
defendants  excepted.  The  case  was  tried  and  went  to  the 
jury  under  the  charge  of  the  court,  in  which  charge  the  court 
directed  the  jury  that,  under  the  laws  of  Wyoming,  the 
sheriff  was  the  proper  custodian  of  the  prisoners  committed 


March,  1876.]  COUNTY  COMMISSIONERS  v.  BOSWELL.      295 

Argument  for  Plaintiff  in  Error. 

to  the  jail  of  the  several  counties  of  the  territory,  for  the 
keeping  of  which  that  officer  was  entitled  to  receive  from 
the  county  funds  the  sum  of  one  dollar  per  day  for  their 
keeping,  and  that  the  county  commissioners  had  no  right 
to  do  anything  by  which  he  was  prevented  from  recovering 
that  amount. 

The  defendants  in  the  court  below  claimed  that  they  had 
made  a  contract  with  the  military  authorities  at  Fort  San- 
ders for  the  keeping  and  subsistence  of  the  prisoners,  and 
that,  therefore,  the  plaintiff  had  no  claim  against  them  for 
said  keeping  and  subsistence,  and  cited  several  authorities 
in  support  of  their  position,  none  of  which,  however,  we 
think,  are  applicable  to  this  case.  Under  the  evidence,  and 
the  instructions  of  the  court,  the  jury  found  for  plaintiff 
below,  and  assessed  his  damages  at  two  thousand  four  hun- 
dred and  fifty-four  dollars  and  twelve  cents,  and  judgment 
was  entered  for  plaintiff  for  that  amount. 

C.  W.  Bramel,  for  plaintiff  in  error. 

This  case  was  originally  commenced  in  the  court  below 
by  N.  K.  Boswell,  to  recover  of  the  county  a  large  sum  of 
money  alleged  to  be  due  him  for  keeping  or  boarding  pris- 
oners of  the  county  while  he  was  sheriff.  The  petition  was 
demurred  to  on  the  ground  that  the  plaintiff  should  present 
his  bill  first  to  the  county  commissioners,  and  appeal  from 
their  decision  in  case  of  disallowance.  On  that  question  the 
cause  came  up  to  this  court  at  its  last  term.  The  action 
was  sustained  and  the  case  went  back  for  further  proceed- 
ings, when  the  defense  set  up  was  that  there  was  no  jail ; 
that  the  prisoners  were  kept  at  the  military  post  of  Fort 
Sanders,  by  an  arrangement  with  the  county  commissioners  ; 
and  that  the  county  subsequently  paid  the  military  authori- 
ties at  the  post  in  full  for  keeping  the  prisoners.  The  right 
of  the  sheriff  to  make  contract  with  other  parties  for  keep- 
ing prisoners  was  also  denied. 

Upon  the  joining  of  issue,  the  court  struck  out  all  that 


296  COUNTY  COMMISSIONERS  v.  Bos  WELL.    [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

portion  of  the  answer  setting  up  a  contract  or  arrangement 
between  the  county  commissioners  and  the  military  authori- 
ties. A  trial  resulted  under  the  rulings  of  the  court  on  the 
admissibility  of  testimony,  and  as  to  the  law  in  the  instruc- 
tions to  the  jury,  which  judgment,  it  is  submitted,  is  based 
on  error  in  the  following  particulars : 

I.  The  court  erred  in  sustaining  the  motion  of  Boswell  to 
strike  from  the   answer  the    second  defense  set  up.     That 
portion  of  the  answer,  if  maintained  by  plaintiff,  constitutes 
a  complete  defense. 

It  is  said  there  was  no  county  jail.  If  so,  it  was  not  only 
the  proper  province  of  the  commissioners  to  provide  for  the 
keeping  of  the  prisoners,  but  their  duty  so  to  do.  The  en- 
tire management  of  the  affairs,  interests  and  business  of  the 
county  is  in  their  hands :  Laws  of  1868,  p.  149,  sec.  11 ;  48 
Penn.  St.  Rep.  123  ;  Vankirk  v.  Clark,  16  Sergeant  &  Rawle, 
290  ;  Sclauble  v.  The  Sheriff,  10  Harris,  19.  The  commis- 
sioners must  provide  or  designate  a  county  jail :  Laws  of 
1869,  p.  293,  sec.  1.  It  is  the  duty  of  the  sheriff  to  keep 
such  jail  after  it  has  been  provided :  Laws  of  1869,  chap. 
17,  sec.  4,  p.  162.  And  in  case  the  sheriff  boards  the  pris- 
oners, he  is  allowed  as  compensation  one  dollar  per  day : 
Laws  of  1869,  p.  375,  sec.  2.  But  there  is  no  law  compel- 
ling him  to  board  prisoners  or  even  making  it  his  duty  so  to 
do.  The  motion  stated  as  one  ground  that  the  new  matter 
did  not  constitute  a  set-off  or  counter-claim.  But  it  is  not 
necessary  that  it  should  if  it  constitutes  a  defense :  Laws  of 
1873,  p.  39,  sec.  90 ;  Nash,  PI.  and  Pr.  185. 

II.  The   court  erred  in  overruling  the  objections  of  de- 
fendant to  the  testimony  of  plaintiff  below,  as  to  the  making 
a  contract  by  him  with  the  military  authorities.     The  objec- 
tion was  good,  the  object  being  to  bind  the  county  by  a  con- 
tract, which,  if  made,  was  beyond  his  power  to  make.    The 
law  vests  in  the  sheriff  nowhere  the  power  to  provide  or 
designate  a  jail.     Again,  the  action  was  not  by  third  parties 
to  recover  against  the  county,  but  by  an  officer  to  recover  on 
•4  contract  implied  by  law,  between  himself  and  the  county, 


March,  1876.J  COUNTY  COMMISSIONERS  v.  BOSWELL.      297 

Argument  for  Plaintiff  in  Error. 

hence  the  irrelevancy  of  all  the  testimony  of  the  sheriff  con- 
cerning an  alleged  contract  between  himself  and  some  one 
else.  Again,  if  the  sheriff  had  no  authority  to  contract  in 
the  name  of  the  county  with  the  military  authorities,  he 
could  have  no  claim  against  the  county  by  virtue  of  his  own 
illegal  action.  So,  too,  the  objection  to  the  testimony  of  the 
plaintiff  below,  to  the  hearsay  and  secondary  testimony  as  to 
the  contracts  of  the  guard-house  registers,  should  have  been 
sustained  as  the  evidence  was  clearly  incompetent.  Several 
erroneous  rulings  by  the  court  as  to  the  admissibility  of  the 
evidence  by  Wagner  were  cured  by  the  waiver  of  them  by 
the  counsel  in  whose  favor  they  were  made.  But  the  sus- 
taining of  the  objections  of  the  plaintiff  below  to  the  testi- 
mony of  Abbott,  the  effect  of  which  was  to  deprive  the 
defendants  below  of  the  testimony  concerning  their  con- 
tracts or  arrangements  with  the  military  authorities,  was 
error,  for  the  same  reasons  given  and  under  the  authorities 
cited  under  the  first  head  of  this  brief.  The  exclusion  of 
the  county  records  was  error  for  the  same  reason. 

III.  The  court  also  erred  in  refusing  to  give  the  instruc- 
tions requested  by  defendants  below.  The  instructions  were 
evidently  refused  on  the  same  view  of  the  case  by  the  court, 
that  caused  it  to  sustain  the  motion  to  strike  out  the  second 
defense  in  the  answer,  and  is  error  for  like  reasons.  The 
giving  of  the  instructions  contained  in  the  record  was  error: 

1.  The  second  instruction  given  was  erroneous,  in  that  it 
did  not  go  further.     It  should  have  been  qualified  by  the 
words,  "  to  the  county  jail."     That  no  prisoner  can  be  law- 
fully imprisoned,  except  as  he  is  in  the  custody  of  the  sheriff 
of  the  county,  is  absurd. 

2.  The  third  instruction  is  as  completely  in  the  face  of  the 
law  as  can  well  be  imagined :  See  authorities  before  cited. 

3.  The  fourth  instruction  was  erroneous  and  calculated  to 
mislead  the  jury,  for  the  reason  that  it  is  not  warranted  by 
the  evidence,  or  anything  else  that  appears  in  the  case.     It 
is  incorrect  as  an  abstract  proposition,  even  if  it  were  appli- 
cable. 


COUNTY  COMMISSIONERS  v.  BOSWBLL.    [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

4.  The  fifth  instruction,  as  a  proposition  of  law,  is  incor- 
rect; as  constructed,  is  inapplicable  under  all  the  testimony; 
has  a  tendency  to  degrade- the  office  of  sheriff,  and  make  him 
a  vulture  preying  on  the  necessities  of  the  county,  whose 
interests   he  is  elected  to  subserve,  and  to  encourage  the 
sheriff  in  a  betrayal  of  the  trust  reposed  in  him.     It  is  there- 
fore erroneous,  having  a  direct  tendency  to  mislead  the  jury. 

5.  The  sixth  instruction  given,  so  far  as  it  instructs  the 
jury  to  find  for  the  plaintiff,  is  the  legitimate  product  of  the 
errors  which  had  preceded  it,  with  the  addition  that  it  took 
from  the  jury  the  right  to  weigh  the  evidence  and  judge  of 
the  facts  themselves.      Where  there  is  evidence  pro  and  con 
upon  any  issue,  it  is  error,  for  the  court  to  take  the  case  from 
the  jury  :  3  Graham  &  Waterman  on  New  Trials,  738  to  763 
inclusive,  and  cases  there  cited.     And  in  so  far  as  it  stated 
the  fact  to  be,  that  the  allegations  of  the  petition  were  not 
denied,  and  were  therefore  confessed;    it  was  a  very  plain 
statement  in  the  teeth  of  a  very  ample  denial  of  indebted- 
ness, in  manner  and  form  as  alleged.      Again ;    not  only  is 
there  a  general  denial  in  the  portion  of  the  answer  that  re- 
mained, but  a  full  statement  of  matter,  constituting  a  com- 
plete denial  and  defense  in  that  portion  stricken  out ;  and  an 
instruction  based  on  previous  error  could  hardly  be  relied 
on  to  cure  the  first,  or  be  in  itself  correct,  in  consequence  of 
its  erroneous  foundation. 

IV.  The  motion  for  new  trial  should  have  been  sustained 
on  account  of  the  errors  heretofore  mentioned,  and  the  ad- 
ditional reason  therein  set  forth,  that  the  verdict  is  not  sup- 
ported by  testimony.  It  is  proven  and  conceded  that  during 
Boswell's  administration  there  was  no  county  jail.  The  evi- 
dence for  the  defense  shows  an  arrangement  with  the  military 
authorities,  by  a  previous  board  of  commissioners,  which 
was  continued  in  force  by  mutual  consent.  But  it  is  impor- 
tant who  made  the  contract.  The  testimony  of  Boswell  is 
that  he  made  a  contract  to  have  the  prisoners  kept  at  thirty- 
three  and  one  third  cents  per  day  ;  that  he  did  not  board 
them,  or  furnish  them  provisions  ;  that  the  bill  for  their  keep- 


March,  1876.]  COUNTY  COMMISSIONERS  v.  BOSWELL.      299 


Argument  for  Defendant  in  Error. 


ing  under  tliat  contract  was  paid  by  thecounty.  Under  that 
testimony  he  should  either  have  l>een  nonsuited,  or  the  jury 
should  have  been  instructed  to  find  for,  the:  defendant. 
Again;  Bos  well  could  not  swear  to  his  account,  and  did  not. 
His  testimony  furnishes  no  basis  upon  which  the  jury  could 
possibly  have  assessed  damages  in  his  favor,  or -upon  which 
the  court  could  have  instructed  them  so,  to  do.  The  evi- 
dence did  not  support  the  verdict. 

V.  The  overruling  the  demurrer  was  also  error,  as  the 
petition  certainly  showed  upon  its  face  that  there  was  no 
cause  for  action,  for  the  reasons  stated  in  the  demurrer. 
But  it  was  done  under  the  direction  of  this  court,  and  the 
opinion  of  this  court  on  that  point  will  probably  be  consid- 
ered the  law  in  this  case,  and  render  further  argument  here 
nugatory.  It  is  assigned  as  error,  however,  to  save  the 
point,  should  the  case  be  reviewed  by  a  higher  court. 

M.   C.  Brown,  for  defendant  in  error : 

The  first  objection  made  by  plaintiff  in  error  to  the  pro- 
ceedings in  this  case  is  the  ruling  of  the  court  in  striking 
out,  on  motion  of  defendant  in  error  (plaintiff  in  court  be- 
low), a  portion  of  the  answer,  on  the  ground  that  it  was 
redundant,  irrelevant  and  scandalous.  The  answer  filed 
was  wholly  bad,  for  the  reason  a  general  denial  would 
have  put  in  issue  every  fact  to  be  tried  in  the  case.  The 
answer  was  a  special  denial,  and  therefore  bad  for  redundancy: 
See  Nash's  PL  and  Pr.  64,  65  ;  6  Pr.  R.  355 ;  Van  Sant- 
voord's  PL  251 ;  Dennison  v.  Dennison,  9  Pr.  R.,  246. 

There  was  no  error  by  the  court  in  striking  out  on  motion 
the  last  part  of  the  answer  for  redundanc}r,  because  this  part 
of  the  answer  is  specific  and  takes  issue  on  an  immaterial 
matter:  Nash,  65;  Van  Santvoord's  PL  251. 

There  was  no  error  by  the  court  in  striking  out,  for 
another  reason.  There  could  be  no  fact  proven  under  this 
part  of  the  answer,  if  allowed  to  stand,  that  could  not  be 
put  in  evidence  under  the  special  denial  preceding  it: 
Nash,  66  et  xeq. 


300  COUNTY  COMMISSIONERS  v.  BOSWELL.  [Sup.  Ct. 


Argument  for  Defendant  in  Error. 


New  matter  in  avoidance  cannot  be  pleaded  under  the 
code  without  admitting  a  cause  of  action  in  the  plaintiff, 
and  then  pleading  special  matter  showing  no  right  to  re- 
cover at  the  commencement  of  the  action :  Nash,  67  et  seq.  ; 
Kyving  v.  Bull,  16  N.  Y.  297. 

There  could  be  no  error  avoidable  to  the  defendant,  un- 
less he  suffered  by  reason  of  the  ruling  of  the  court.  No 
evidence  was  excluded,  and  therefore  there  was  no  wrong : 
See  10  Ohio  St.  557  ;  6  Id.  288  ;  9  Id.  1-6. 

From  the  authorities  aforesaid,  we  claim  that  there  was 
not  only  no  error  by  the  court  in  striking  out,  but  the 
plaintiff  might,  considering  the  whole  answer,  have  prop- 
erly asked  for  judgment  for  his  entire  claim  without  any 
evidence  being  offered.  Was  there  sufficient  on  which  the 
jury  might  base  the  verdict  returned  ?  Clearly  there  was. 
The  court  cannot  set  aside  a  verdict  because  the  evidence 
is  conflicting :  see  17  Ohio,  128,  131;  12  Ohio  St.  515;  6 
Ohio,  456 ;  12  Id.  151.  The  court  can  only  set  aside  ver- 
dict when  it  is  clearly  against  the  evidence :  See  Webb  v. 
Protection  Ins,  Co.,  6  Ohio,  456  ;  12  Id.  151 ;  Nancy,  v. 
Saekett,  1  Ohio  St.  55;  3  Id.  399;  4  Id.  556.. 

It  is  urged  as  error  in  the  court  that  instructions  re- 
quested by  plaintiff  in  error  were  refused.  This  was  not 
error  in  the  court,  because  the  instructions  were  not  pre- 
sented at  the  time  required  by  law.  Some  of  instructions 
not  sound  law,  therefore  no  error:  Inghbright  v.  Hammond, 
19  Ohio,  337. 

No  request  for  instructions  was  made,  as  by  law  required : 
See  Code,  72,  subd.  5,  sec.  226.  The  giving  of  requested 
instructions  then  became  a  matter  of  discretion,  therefore 
a  failure  to  give  them  cannot  be  error:  Legg  v.  Drake,  1 
Ohio  St.  286;  11  Id.  114-118,  339-347,  691.  To  request 
instructions  is  to  gain  a  technical  advantage,  and  should 
be  met  with  technical  objections:  Forhsythe  v.  State,  6  Ohio, 
19-21. 

The  plaintiff  in  error  alleges  error  by  the  court  in  giving 
certain  instructions  at  the  instance  of  defendant  in  error. 


March,  1876.]  COUNTY  COMMISSIONERS  v.  BOSWELL.     301 

Opinion  of  the  Court — Fisher,  C.  J. 

The  objection  goes  to  all  the  instructions  generally,  and  not 
to  any  certain  instruction,  and  is  therefore  bad,  even  if  the 
record  shows  error.  The  exception  goes  generally  to  all 
the  instructions  given,  if  one  only  of  the  instructions  is  cor- 
rect in  law  the  exception  is  not  well  taken,  and  the  judg- 
ment below  cannot  be  disturbed:  See  Cleveland  Co.  C.  R. 
Co.  v.  Terry,  8  Ohio  St.  570  ;  19  Ohio,  337  ;  Frances  v. 
Millard,  2  Ohio  St.  44 ;  14  Id.  292  ;  2  Id.  598.  When  from 
the  whole  record  it  appears  conclusively  that  a  proper 
judgment  was  entered  it  cannot  be  reversed  on  error :  Har- 
mon v.  Kelly,  14  Ohio,  502 ;  14  Id.  606 ;  8  Ohio  St.  405  ; 
10  Id.  557.  But  the  instructions  given  are  sound  law, 
and  there  is  no  error  by  the  court  if  the  exception  is  well 
taken. 

First  instruction  given,  that  it  is  sound  law,  needs  no 
comment. 

The  second  instruction  is  also  sound  :  See  Stat.  1869,  p. 
•293  et  seq.,  sees.  3,  4,  6,  10,  11,  12;  see  also  same  Stat,  pp. 
162  and  3,  sees.  4,  5  and  6.  What  is  good  law  needs  no 
comment.  The  duties  of  county  commissioners  :  see  Stat. 
1869,  p.  146  et  seq.  That  they  have  no  implied  powers  or 
authority  has  been  before  decided  in  this  court.  Instruc- 
tion numbered  4  is  sound  beyond  a  possible  question,  and 
needs  no  comment.  Instruction  numbered  5  is  sound  law. 
It  is  simply  a  reiteration  of  the  statute  of  1869,  page  375, 
sec.  2,  of  act  fixing  fees  of  officers.  The  instruction  num- 
bered 6  was  the  last  given.  It  accords  with  the  first  in- 
struction given,  and  is  sound  law.  It  is  in  strict  accord 
with  our  statute  of  1873,  page  44,  sec.  124.  There  being 
no  error  claimed  or  properly  presented  on  the  admission  of 
evidence,  and  the  other  objections  being  before  disposed  of, 
we  say  there  is  no  error  in  the  record,  and  the  judgment  of 
the  court  below  should  be  affirmed. 

By  the  Court,  FISHER,  C.  J.:  We  find  no  error  in  the 
instructions  of  the  court.  The  laws  of  Wyoming  allow 
the  sheriffs  of  the  respective  counties  one  dollar  per  day 


302  TBABING  v.  COUNTY  COMMISSIONERS.  [Sup.  Ct. 


Statement  of  Facts. 


•for  the  custody  and  subsistence  of  each  prisoner ;  and 
while  it  is  the  duty  of  the  county  commissioners  to  pro- 
vide a  proper  jail  or  place  of  confinement  for  prisoners, 
they  are  not  empowered  to  make  any  arrangement  by 
which  the  emolument  of  the  sheriff  will  be  affected.  The 
com'missioners  in  this  case  claim  that  they  paid  to  the  mili- 
tary authorities  at  Fort  Sanders  thirty-three  and  one-third 
cents  per  day  for  keeping  the  prisoners  during  the  times 
stated.  We  find  that  the  plaintiff  in  this  action  below 
gave  them  full  credit  for  that  amount,  so  that  they  have  no 
cause  to  complain,  because  when  the  judgment  in  this  case 
shall  have  been  paid,  they  will  only  have  paid  the  amount 
Which  the  law  requires  them  to  pay,  except  the  amount  of 
interest  to  which  they  have  become  liable  in  consequence 
of  their  delay. 

The  judgment  is  affirmed. 


TRABING  v.  BOARD  OF  COMMISSIONERS  OF  AL- 
BANY COU-NTY. 

SURETIES. — Though  at  common  law  the  discharge  of  one  surety  to  a 
bond  or  undertaking  may  discharge  all,  a  court  of  chancery  may 
interfere,  and  see  that  material  justice  is  meted  out  to  all  parties. 

APPEAL  from  the  District  Court  for  Albany  County. 

This  was  an  action  in  chancery  brought  from  the  second 
judicial  district  to  March  term  of  this  court,  1876.  The 
record  shows  that  on  the  twenty-third  day  of  July,  A.  D. 
1869,  the  appellant,  with  one  J.  H.  Finfrock,  became  sure- 
ties for  one  Samuel  Douglass,  who  had  been  indicted  by  the 
grand  jury  of  the  offense  of  assault  and  battery,  with  intent 
to  kill  and  murder.  The  bond  aforesaid  being  in  the  penal 
sum  of  one  thousand  dollars,  suit  was  brought  on  the  said 
bond  in  the  district  court  in  and  for  Albany  county,  at  the 
September  term,  A.  D.  1870. 


March,  1876.]  TRABTNG  t>.  COUNTY  COMMISSIONERS.      303 

Argument  for  Appellant; 

•  On  the  third  day '  of  •  Jiily,  'A. -D.  (1ST 2,  -ilie  board  of  county 
oomtoisgioriers,  tit  "a  regular  meeting  held  at  the  cdmmis- 
sioners'  office  at  Laramie  city,  'ih  -said  fcdunty  of  'Albany, 
made  an  arrangement  by  which  the  said  J.  H.  Finfrock  was, 
on  the  payment  of  Iftvo  'hundred  and  fifty  dollars,  released 
from  all  further  payment  or  liability  on  account  of  Baid  bond 
or  judgment,  the  bond  having  become  merged  in  the  judg- 
ment. 

On  the  ninth  day  of  July,  A.  D.  1875,  an  execution  was 
issued  out  of  the  district  court,  directing  the  sheriff  of  Car- 
bon county  to  levy  on  the  personal  properly  of  A.  Tracing 
to  satisfy  the  said  judgment,  interest  and  costs.  The 
sheriff  proceeded  to  levy  on  certain  cattle  and  other  prop- 
erty belonging  to  defendant  Trabing  and  others,  and  adver- 
tised the  property  for  sale.  Trabing,: on  the  thirty-first  of 
July,  1875,  filed  his  bill  in  equity,  and  prayed  :for  a  restrain- 
ing order  to  stop  the  sheriff,  commissioners,  etc.,  from  pro- 
ceeding further,  which  order  was  granted  by  the  judge  of 
the  second  judicial  district;  but  after  several  hearings  on 
the  said  bill  at  the  September  term  of  the  court  in  and  for 
Albany  county,  on  the  eighteenth  day  of  October,  A.  D. 
1875,  the  plaintiff's  (Trabing)  bill  was  dismissed.  It  should 
be  stated  that  prior  to  the  hearing  of  said  bill  a  stipulation 
was  entered  into  by  the  counsel  for  the  plaintiff  on  his  side, 
and  the  county  attorney  for  Albany  county  agreeing  to  a 
certain  statement  of  the  facts,  upon  which  the  whole  case 
was  submitted  to  the  district  court  in  the  nature  of  a  case 
stated. 

The  plaintiff  appealed  from  the  decision  of  the  court  be- 
low, and  brings  the  record  here  for  review,  and  assigns  for 
error  the  ruling  of  the  court  on  the  facts  as  set  out  in  the 
stipulation  of  the  parties,  claiming  that  the  action  of  the 
county  commissioners  in  releasing  Finfrock  from  all  further 
liability  without  the  consent  of  Trabing,  released  and  exon- 
erated Trabing  from  any  further  payment  on  the  judgment. 

J.  Street,  for  appellant,  cited  1  Story's  Eq.  Jur.  sec.  112; 
1  Pars,  on  Con.  27;  Milliyan  \.  Broivn,  1  Rawle,  391. 


304  TRABING  v.  COUNTY  COMMISSIONERS.    [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

0.  W.  Bramel,  for  appellant,  cited  17  Cal.  239 ;  C.  John- 
son, C.  R.  242  et  seq. ;  Ruggles  v.  Patten,  8  Mass.  479 ;  7  Johns. 
207  ;  12  Wright  Pa.  R.  168. 

By  the  Court,  FISHER,  C.  J. :  We  think  the  court  below 
erred  in  dismissing  plaintiff's  bill.  The  laws  of  Wyoming 
invest  the  court  with  very  extended  powers  in  chancery 
cases.  The  chancellor  is  invested  with  the  power  to  grant 
the  prayer  of  the  bill,  to  dismiss  the  bill,  or  to  grant  such 
relief  as  shall  be  in  accordance  with  justice  and  good  con- 
science. Now,  Finfrock  being  released  from  all  liability 
on  account  of  the  bond  or  judgment  obtained  thereon, 
leaves  Trabing  liable  for  the  whole  amount.  And  by  the 
dismissal  of  his  bill  he  becomes  liable  to  pay  the  judgment, 
interest  and  cost,  and  at  the  same  time  deprived  of  the  priv- 
ilege of  proceeding  against  Finfrock  for  contribution. 
Surely  this  cannot  be  explained  upon  any  equitable  hypoth- 
esis. We  therefore  think  the  proper  order  would  have  been 
to  modify  the  claim  as  provided  for  in  section  511  of  the 
code  of  1873,  and  that  unless  the  plaintiff  in  the  judgment 
on  the  bond  would  accept  of  such  modified  order,  that  then 
the  injunction  should  have  been  granted  as  prayed  for. 

This  court  therefore  order  and  decree  that  upon  the 
plaintiff  in  this  action  paying  to  the  board  of  county  com- 
missioners of  Albany  county  the  sum  of  two  hundred  and 
fifty  dollars,  with  interest  from  the  date  of  the  release  given 
to  Finfrock  and  the  costs,  that  the  said  board  shall  execute 
a  full  release  and  satisfaction,  and  that  upon  their  failure  to 
comply  with  this  order,  that  then  the  injunction  be  made 
perpetual.  This  action  is  based  upon  the  provisions  of 
sections  512  and  513  of  the  statutes  of  Wyoming,  1873, 
which  invests  this  court  with  the  power  to  reverse,  vacate 
or  modify  any  judgment  rendered  or  final  order  made  by 
the  district  court  or  any  judge  thereof. 


March,  1876.]          EMERY  t».  HAWLEY.  305 

Argument  for  Plaintiff  in  Error. 


EMERY  ET  AL.  v.  HAWLEY. 

NEW  TRIAL. — A  motion  for  a  new  trial  will  not  be  granted  where  two 
verdicts  for  the  same  party  have  already  been  rendered,  the  second 
for  a  larger  amount  than  the  first,  where  the  amount  involved  is 
small,  and  where  there  is  no  probability  that  a  verdict  materially 
different  would  be  arrived  at  by  a  jury,  unless  very  great  and  mani- 
fest injustice  has  been  done. 

ERROR  to  the  First  Judicial  District  Court  for  Laramie 
County. 

A  sufficient  statement  of  the  case  appears  in  the  opinion 
of  the  court  and  briefs  of  counsel. 

E.  P.  Johnson  and  W.  P.  Carroll,  for  plaintiff  in  error. 

This  case  comes  up  from  the  first  district.  Plaintiffs  in 
error  were  defendants  below.  This  action  was  one  in  re- 
plevin for  the  recovery  of  a  horse,  and  the  case  was  tried 
at  the  May  term,  1875.  No  exception  was  taken  to  the  in- 
structions of  the  court  to  the  jury,  but  a  motion  for  a  new 
trial  was  made  and  filed  by  the  plaintiffs  in  error,  on  the 
ground  that  the  evidence  did  not  support  the  verdict,  which 
was  in  favor  of  Hawley  for  ten  dollars  damages,  and  against 
both  of  the  defendants.  The  motion  was  overruled,  and  an 
exception  taken,  and  a  motion  in  arrest  filed,  the  ground 
being  a  defective  verdict,  upon  which  no  judgment  could 
be  rendered,  which  motion  was  also  overruled,  and  the  ver- 
dict amended  by  the  court  several  days  after  its  rendition, 
so  that  judgment  could  be  rendered  on  the  same  ;  to  all 
which  exception  was  taken,  and  it  is  to  correct  those  errors 
that  the  case  is  brought  up. 

I.  The  first  error  complained  is  that  the  motion  for  a  new 
trial  was  overruled.  It  will  be  seen  by  the  testimony  that 
there  was  no  proof  of  damage,  and  yet  the  jury  assessed 
the  damage  at  ten  dollars.  In  that  respect  the  motion  was 
well  founded,  and  should  have  been  sustained ;  Second.  No 
20 


806  EMERY  v.  HAWLEY.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

verdict  could  be  against  both  of  the  defendants.  The  gist 
of  the  action  of  replevin,  under  our 'statute,  is  the  wrongful 
detention  of  personal  property.  The  action  can  only  be 
maintained  against  one  who  has  in  fact  or  in  law  the  con- 
trol or  possession  of  the  property.  The  plaintiff  must  not 
only  show  that  he  is  lawfully  entitled  to  the  property,  but 
that  the  defendant  unlawfully  withholds  it:  Nash  PL  &  Pr. 
812;  Bank  v.  Dayton,  Sup.  Ct.  \Vyo.  The  very  ground 
upon  which  plaintiff  behnv  based  her  right  to  recover  was 
that  no  title  has  ever  passed  to  A.  S.  Emery,  and  that 
there  had  never  been  a  delivery  to  him.  If  so,  it  is  simply 
a  legal  impossibility  that  A.  S.  Emery  should  liaVe  wrong- 
fully detained  the  horse,  yet  the  verdict  and  judgment  were 
against  him  as  well  as  against  George.  Plaintiff's  own  tes- 
timony shows  that  no  demand  was  ever  made  on  A.  S. 
Emery. 

On  the  other  hand,  if  A.  S.  Emery  did  own  a  part  of  the 
horse,  or  if  possession  was  given  George  by  both  Hawley 
and  A.  S.  Emery,  then  George  was  not  only  justified  in  re- 
fusing to  deliver  to  either  without  the  order  or  consent  of 
the  other,  but  he  would  have  been  liable  to  the  injured 
party  had -he  done  so,  and  the  action  cannot  be  supported 
by  one  joint  owner  of  property.  The  very  ground  upon 
which  recovery  could  be  had  against  either  would  be  a  com- 
plete defense  for  the  other.  The  verdict  is  contrary  to  all 
the  evidence  and  the  law.  There  is  nothing  to  support  it 
against  both  defendants. 

II.  The  motion  in  arrest  should  have  been  sustained. 
The  judgment  must  conform  to  the  verdict :  Laws  of  Wyo- 
ming, 1873,  94.  No  judgment  could  therefore  have  been 
entered  on  the  verdict  in  thivS  case,  as  the  verdict  was  not 
entitled  in  the  cause,  but  purported  to  be  a  verdict  in  some 
other  cause  in  which  neither  plaintiff  nor  defendants  were 
the  same.  The  verdict  is  unintelligible.  There  was  no  evi- 
dence to  support  the  assessment  of  damages  against  the  de- 
fendants. There  was  no  evidence  to  justify  a  judgment  or 
verdict  against  both,  if  that  is  what  is  meant.  The  court 


March,  1876.]  EMERY  v.  HAWLEY.  807 

Opinion  of  the  Court — Thomas,  J. 

below,  while  overruling  the  motion  in  arrest,  admitted  by 
implication  that  it  was  well  taken  in  amending  the  verdict 
to  make  it  responsive  to  the  issue  before  rendering  judg- 
ment, and  thereby  annulling  the  third  error  complained  of, 
to  wit,  amendment  of  the  verdict  several  days  after  the  dis- 
charge of  the  jury,  and  upon  its  own  motion. 

Judgment  mast  be  in  conformity  with  the  verdict  of  the 
jury  if  ti  jury  trial  be  had,  and  not  the  verdict  of  the  court. 
The  amended  verdict  was  not  the  verdict  of  the  jury,  and 
the  judgment  thereon  was  erroneous  and  void.  Again,  it 
was  error  to  amend  the  verdict  of  the  jury  without  their  con- 
sent prior  to  their  discharge,  in  any  material  point :  Clark  v. 
Irwin,  9  Ohio,  131 ;  Patterson  v.  United  State*,  2  Wheat.  221 ; 
Sergeant  v.  State,  11  Ohio,  472  ;  Blackley  v.  Shetton,  7  John- 
son, 32.  That  the  amendment  was  material  is  shown  in  the 
necessity  for  a  different  verdict  in  the  case,  before  judgment 
could  be  pronounced. 

Thomas  J.  SJteel^  for  defendant  in  error. 

This  cause  has  been  twice  heard  by  jury,  both  verdicts 
for  Hawley.  The  court  refused  to  disturb  the  second 
verdict.  No  exception  was  taken  to  the  charge  of  the  court 
to  the  jury  or  to  any  act  of  the  court,  except  the  correction 
of  the  form  of  the  verdict. 

I.  A  third  trial  will  rarely  be  granted,  after  the  concur- 
ring verdict,  unless  some  plain  rule  of  evidence  or  principle 
of  law  be  violated :  2  Tibb's  Practice,  note  to  p.  904  et  seq. 
It  seems  from  the  note  to  be  a  matter  resting  in  discretion 
of  judge  below. 

II.  The  court  had  a  right  to  correct  the  verdict:  Laws 
Wyoming,  1873,  p.  45,  sees.  133, 134. 

By  the  Court,  THOMAS,  J.:  This  was  an  action  of  replevin 
in  the  district  court,  brought  by  the  said  ffaiclet/  v.  G-eo.  A. 
Emery  and  A.  L.  Emery,  to  recover  the  possession  of  a  cer- 
tain horse  of  the  alleged  value  of  three  hundred  dollars. 


308  EMERY  v.  HAWLEY.  [Sup.  Cfc. 

Opinion  of  the  Court — Thomas,  J. 

No  complaint  whatever  is  made  by  the  plaintiff  in  error 
that  any  error  whatever  was  committed  by  the  judge  of  the 
district  court  upon  the  trial  of  the  case,  until  the  coming  in 
of  the  verdict  in  favor  of  the  then  plaintiff,  now  defendant 
in  error. 

This  case  was  twice  tried  in  said  district  court  before  a 
jury,  and  in  each  instance  a  verdict  was  returned  in  favor 
of  the  plaintiff,  and  upon  the  second  occasion  for  a  much 
larger  amount  than  upon  the  first.  While  the  jury  upon 
the  second  trial  could  have  very  materially  improved  the 
form  of  their  verdict,  we  are  not  of  the  opinion  that  under 
the  circumstances,  the  court  below  would  have  been  justified 
in  setting  aside  the  same  and  ordering  a  third  trial. 

Neither  do  we  perceive  under  the  circumstances,  that  any 
error  was  committed  by  the  district  court  affecting  the 
rights  of  parties.  And  after  two  trials,  upon  each  of  which 
verdicts  were  rendered  for  the  plaintiff,  it  would,  we  believe, 
require  a  very  strong  case  to  authorize  the  granting  of  an- 
other trial.  The  amount  of  damages  for  which  the  verdict 
is  rendered  is  also  very  small.  It  may  be  said  that  that 
should  not  be  taken  into  consideration  by  the  court,  as 
every  person  is  entitled  to  his  rights  whether  they  relate  to 
a  large  or  a  small  sum.  This  is  undoubtedly  true  to  a  very 
great  extent,  in  fact  in  every  case,  until  we  reach  the  ques- 
tion of  appeals.  At  that  point  it  is  apparent  from  the  laws 
in  reference  to  appeals  to  the  supreme  court  of  the  United 
States  and  of  this  territory,  that  the  amount  involved  is  a 
most  important  question. 

The  judgment  of  the  district  court  is  affirmed,  and  a  writ 
of  procedendo  ordered  to  Laramie  county. 


March,  1876.]  UNION  PACIFIC  R.  R.  Co.  v.  WILSON.      309 

Argument  for  Defendant  in  Error. 


UNION  PACIFIC  RAILROAD  COMPANY  v.  WILSON. 

REFEREE. — Under  the  provisions  of  the  statutes  of  Wyoming,  the  court 
may  order  a  reference  in  a  case  the  trial  of  which  involves  the  ex- 
amination of  a  long  account. 

IDEM. — But  where  the  report  of  a  referee  is  not  responsive  to  the  issues, 
the  case  should  be  sent  back  for  trial  to  a  new  referee,  or  to  a  jury, 
and  not  to  the  first  referee. 

ERROR  to  the  Second  District  Court  for  Albany  County. 

A  sufficient  statement  of  the  case  is  contained  in  the  opin- 
ion of  the  court. 

W.  W.  Corlett,  for  the  plaintiff  in  error,  contended  that 
the  report  of  the  referee  was  irregular,  uncertain,  irrespon- 
sive to  the  issues,  and  unsupported  by  the  evidence,  and 
that  the  district  court  erred  in  referring  the  case  back  to 
the  same  referee  and  in  ordering  judgment  upon  the  final 
report,  and  cited  :  1  Abb.  Prac.  187,  262  ;  Gregory  v.  Wriyht., 
11  Abbott,  417;  Allen  v.  Patterson,  1  N.  Y.  476;  Nash,  PI. 
10,  16  ;  Garcia  v.  Sheldon,  3  Barb.  232  ;  Bank  of  Washington 
v.  Trlphtt,  7  Curt.  433  ;  City  of  Buffalo  v.  Holloway,  7  N.  Y. 
493  ;  Cooley's  Const.  Lira.  365 ;  2  Am.  Rep.  100  ;  13  Id.  55 ; 
5  Metcalf,  400 ;  29  Penn.  St.  262 ;  11  Mann,  396 ;  35  Wis. 
131;  7  Ohio,  2. 

J.   W.  Kinyman,  for  defendant  in  error. 

This  is  an  action  of  assumpsit,  founded  on  a  balance  of 
account  for  work  and  labor  and  materials  provided  by  the 
plaintiff  for  the  defendant.  On  the  application  of  the  de- 
fendant, a  copy  of  the  plaintiff's  ledger  account  was  made  a 
part  of  the  petition.  From  that  it  appeal's  that  the  plain- 
tiff's charges  amount  to  thirteen  thousand  three  hundred  and 
eiglity-foitr  dollars  and  fifty-one  cents,  and  his  credits 
amount  to  twelve  thousand  one  hundred  and  forty-eight 
dollars  and  ninety-eight  cents,  leaving  a  balance  due  him, 
on  the  thirtieth  day  of  August,  1870,  of  one  thousand 


310  UNION  PACIFIC  R.  R.  Co.  v.  WILSON.    [Sup.  Ct. 

Opiuion  of  the  Court — Fisher,  C.  J. 


two  hundred  and  thirty-five  dollars  and  fifty-three  cents. 
As  the  investigation  of  these  large  accounts  would  be  labo- 
rious before  a  jury,  the  court  ordered  the  case  to  a  referee 
for  a  hearing.  To  this  order  the  defendant  made  no  ob- 
jection and  took  no  exception.  The  order  was  general,  to 
wit,  that  the  referee  should  "take  the  testimony  in  the 
case  and  report  the  same  to  the  court,  with  his  findings  of 
fact  thereon."  The  referee  took  all  the  testimony  in  writing, 
with  all  the  exceptions  and  objections  of  the  parties,  and 
returned  the  same  to  the  court,  with  a  general  finding  in 
favor  of  plaintiff  of  one  thousand  one  hundred  and  sixty- 
four  dollars  and  twenty-three  cents,  with  interest  thereon 
from  August  31,  1870,  to  date  of  judgment.  The  court 
confirmed  this  report,  after  a  long  and  patient  investigation, 
and  ordered  judgment  thereon. 

During  the  progress  of  the  trial  before  the  referee  the 
defendant  requested  the  referee  to  answer  a  long  list  of 
questions,  or  report  a  large  number  of  special  findings, 
which  the  referee  has  attempted  to  do ;  but  we  deny  the 
right  of  the  referee  to  dictate  any  such  questions,  and  we 
insist  that  a  general  finding  for  one  party  or  the  other  is  all 
that  the  referee  could  do,  under  the  order  in  this  case. 

He  was  directed  to  report  the  testimony  in  this  case  and 
his  finding  as  a  verdict  thereon,  and  he  had  no  power  to  de- 
cide questions  of  law  or  report  his  views  of  the  law  to  the 
court :  Stat.  of  1873,  sec.  283.  The  whole  matter  would  then 
be  open  to  a  review  on  the  law  and  the  evidence,  in  the  dis- 
trict court,  and  a  proper  judgment  rendered.  We  insist, 
therefore,  that  the  general  finding  in  this  case  can  only  be 
assailed  on  the  same  grounds,  and  for  the  same  reasons,  that 
a  general  verdict  of  a  jury  could  be  assailed,  and  that  the 
bill  of  exceptions  contains  no  valid  objections  to  a  general 
verdict  on  the  pleadings. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  founded 
on  several  causes  of  action,  to  wit : 

1.  For  work  and  labor,  care  and  diligence  of  said  plain- 


March,  I87t5.j  UNION  PACIFIC  R.  R.  Co.  v.  WILSON.      311 

Opinion  of  the  Court— Fisher,  C.  J. 

tiff,  now  defendant  in  error,  performed!  and  bestowed  about 
the  business  of  said  defendant,  now  plaintiff  in  error,  at  his 
request;  as  boarding-house  keeper,  and  also  for  divers  goods, 
wares  and  merchandise,  and  other  necessary  things,  by  said 
plaintiff  found  and  provided,  by  said  defendant's  request; 

2,  Said  plaintiff  below  claimed  one  thousand  one  hundred 
and  twenty^five  dollars,  for  wages  or  salary  for- services  per- 
formed, as  clerk  for  defendant,  now  plaintiff  in  error.  On 
the  thirteenth  of  February,  A.  D.  1875,  the  defendant  below 
filed  his  answer  to  plaintiff's  petition,  denying  generally  and 
specially  the  allegations  of  the  said  petition,  and  for  a  second 
defense  'plead'  payment  in  full,  and1  for  a  third  defense 
pleads  the  bar  of  the  statutes  of  limitations.  On  the  said 
thirteenth  of  February,  1875,  by  agreement  of  parties,  A. 
G.  Swain  was  appointed  referee,  ,to  take  and  report  his  find- 
ings of  facts  to  the  court.  On  the  nineteenth  of  March, 
1875,  the  referee  reported  to  the  court  the  evidence  taken, 
and  his  findings  thereon,  and  the  case  came  on  to  be  heard 
on  the  defendant's  (below)  motion  to  set  aside  the  report  of 
the  referee  and  grant  a  new  trial.  On  the  twenty-seventh 
of  March,  1875,  said  motion  was*  sustained,  and  it  was  fur- 
ther ordered  by  the  court  that  the  cause  be  referred  back  to 
the  said  referee,  A.  G.  Swain,  to  report  the  facts  in  the 
case,  with  all  the  evidence,  and  that  he  report,  definitely  and 
superficially,  all  the  issues  involved  in  the  case. 

The  defendant  below  then  and  there  objected  and  ex- 
cepted  to  that  portion  of  order  of  the  court  referring  the 
cause  back  to  A.  G.  Swain  for  a  new  trial.  The  said  referee 
having  once  tried  the  cause,  and  having  formed  and  expressed 
opinions  therein,  was  an  improper  person  for  referee  upon 
a  second  trial.  Upon  this  objection  and  exception  the  coun- 
sel for  defendant  below  cites  :  Seney's  Code,  sec.  282  ;  Max- 
well v.  St  etc  art,  21  Wallace,  71;  Jolinisoii  v.  Wallace^  1  Ohio 
(part  2),  G2  ;  Nash  on  Plead,  and  Pnic.  1016  ;  Gratia  v.  Shel- 
don, 3  Barb.  232;  Nash  on  Plead,  and  Prac.  1021-1023. 

On  the  twenty-sixth  of  April,  1875,  the  said  referee  filed 
a  second  report,  and  the  defendant  moved  to  set  it  aside 


312  UNION  PACIFIC  R.  R.  Co.  v.  WILSON.    [Sup.  Ct. 


Opinion  of  the  Court — Fisher,  C.  J. 


and  for  a  new  trial.  The  court,  therefore,  ordered  the  case 
back  to  A.  G.  Swain,  the  referee  heretofore  appointed  in  the 
case.  On  the  twenty-second  of  May,  1875,  the  said  referee 
having  made  out  and  filed  a  third  report  in  the  case,  the 
defendant  moved,  for  various  reasons,  to  vacate  the  third 
report  and  grant  a  new  trial.  On  the  twenty-sixth  of  May 
the  court  overruled  said  motion,  and  the  third  report  was 
in  all  things  affirmed,  to  which  defendant  excepted.  On 
the  twenty-eighth  of  June,  1875,  judgment  was  rendered  by 
the  court  for  defendant  in  error,  and  against  plaintiff  in 
error,  for  one  thousand  eight  hundred  and  thirty-eight  dol- 
lars and  eighty-six  cents,  the  amount  found  due  by  the  ref- 
eree, and  two  hundred  and  sixteen  dollars  and  ten  cents 
costs  of  suit. 

The  exceptions  taken  to  the  action  of  the  court  in  sending 
this  case  to  a  referee  three  different  times,  might  be  of  suf- 
ficient importance  to  remand  this  case  for  a  new  trial,  if  the 
fact  did  not  appear  that  it  was  in  the  first  place  referred  by 
the  consent  of  the  parties,  and  that  the  second  and  third 
reference  was  merely  done  by  the  court  for  the  correction  of 
errors.  But  every  reference  only  seemed  to  increase  errors 
on  the  part  of  the  referee.  And  the  error  of  the  court  con- 
sisted in  permitting  the  third  report  of  the  referee  to  be 
filed  and  judgment  entered  on  it.  Without,  therefore,  going 
over  the  many  errors  pointed  out  in  the  brief  of  the  counsel 
for  the  plaintiff  in  error,  none  of  which  is  attempted  to  be 
met  by  the  counsel  for  the  defendant  in  error,  we  think  it 
sufficient  to  say  that  the  case  ought  to  be  sent  back  for  trial, 
either  by  a  jury,  the  court,  or  a  referee  who  will  render  find- 
ings responsive  to  the  issues  involved  in  the  case,  which 
surely  has  not  been  done  by  the  referee  who  has  put  his  find- 
ings on  record  in  this  cause. 

Judgment  reversed  and  trial  de  novo  awarded. 


March,  1876.]  MCCARTHY  v.  TER.  OF  WYOMING.  313 

Opinion  of  the  Court — Fisher,  C.  J. 


MCCARTHY  v.  THE  TERRITORY  OF  WYOMING. 

INDICTMENT — AM-EGATIONS. — An  indictment  for  an  offense  prohibited 
by  statute  must  allege  sufficient  facts  to  bring  the  offense  within 
the  provisions  of  that  special  statute.  A  general  allegation  at  the 
dose  of  the  indictment  to  the  effect  that  the  defendant  "  was  then 
and  there  unlawfully  and  corruptly  guilty  of  malfeasance,"  is  not 
sufficient. 

ERROR  to  the  Third  Judicial  District  Court  for  Sweet- 
water  county. 

A  full  statement  of  the  case  is  contained  in  the  opinion  of 
the  court. 

W.  W.  Corlett,  for  the  plaintiff  in  error,  contended  that 
the  demurrer  to  the  indictment  should  have  been  sustained, 
for  the  reason  that  such  indictment  did  not  set  forth  suffi- 
cient facts,  etc.,  and  cited :  Laws  of  Wyoming,  1869,  380 ; 
Wharton  C.  L.  sec.  364,  et  seq.  ;  U.  S.  v.  Lancaster,  2  McLean, 
431 ;  People  v.  Allen,  5  Denio,  76 ;  Van  Valkenbury  v.  State, 
11  Ohio,  404 ;  Tibbals  v.  State,  5  Mis.  596  ;  State  v.  Huszey, 
11  Am.  R.  209  ;  Bish.  on  Stat.  Crimes,  sec.  223 ;  Cern  v. 
Gibbs,  4  Dallas,  253 ;  Bish.  on  Grim.  Pro.  sec.  612  ;  Wrock- 
lege  v.  State,  1  Iowa,  167  ;  Herring  v.  State,  1  Id.  205  ;  Chap- 
pell  v.  State,  8  La,  166  ;  Green  v.  State,  19  Ark.  178;  Gard- 
ner v.  People,  20  111.  430. 

H.  Garbanatl,  for  the  defendant  in  error,  cites  :  Laws  of 
Wyoming,  1869,  127  ;  2  Bouv.  91,  174 ;  1  Bish.  Grim.  Pro. 
sec.  413,  and  State  v.  Stimpson  there  referred  to. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  indictment  with 
five  counts,  charging  the  defendant  with  malfeasance  in 
office  in  demanding  and  receiving  illegal  fees  as  county 
clerk  in  and  for  said  county  of  Sweetwater.  The  matters 
upon  which  the  said  indictment  was  based  were  as  follows, 
after  inserting  the  caption  of  the  indictment  in  the  usual 


314  McCARTHy  v.  TER.  OF  WYOMING.       [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

form :  That  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  and  find  that  the  said  Timothy 
McCarthy,  late  of  the  county  aforesaid,  on  the  fourth  day  of 
P"ebruary,  A.  D.  1873,  at  the  county  aforesaid,  then  and 
there  being  county  clerk  as  aforesaid,  duly  authorized  and 
qualified  as  aforesaid,  did  then  and  there,  as  said  county 
clerk,  present  a  certain  bill  or  voucher  to  the  board  of 
county  commissioners  of  said  county  (which  said  board  was 
then  and  there  duly  authorized  as  aforesaid)  for  the  sum  of 
eighty  dollars  and  sixty-five  cents,  and  then  and  there  ask, 
demand  and  receive  from  said  county,  payment  of  the  same 
for  services  alleged  to  have  been  by  him,  as  said  clerk,  per- 
formed for  said  county,  and  which  said  bill  contained  items 
not  lawfully  chargeable  against  said  county  by  said  clerk ; 
and  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say 
that  the  said  Timothy  McCarthy,  late  of  the  county  afore- 
said, so  being  county  clerk  as  aforesaid,  then  and  there  did 
unlawfully  present  said  certain  bill  of  that  date  to  the  board 
of  commissioners  of  said  county  as  aforesaid  (which  said 
board  was  then  and  there  duly  authorized  as  aforesaid), 
and  did  then  and  there  ask,  demand  and  receive  from  said 
county  payment  of  said  bill,  which  said  bill  contained  items 
not  justly  or  lawfully  chargeable  against  said  county  \)j  said 
clerk ;  and  the  said  Timothy  McCarthy,  by  his  said  unlaw- 
ful act,  was  then  and  there  wilfully  and  corruptly  guilty  of 
malfeasance." 

The  fifth  count  in  said  indictment  is  in  precisely  the 
same  words  except  in  the  date  of  the  wrongful  act  charged 
and  the  amount  of  money  wrongfully  alleged  to  have  been 
by  said  Timothy  McCarthy  obtained.  No  reference  is 
made  to  the  first,  second  and  fourth  counts  of  the  indict- 
ment for  the  reason  that  the  trial  jury  found  the  defendiint 
not  guilty  in  the  first  and  fourth  counts,  and  paid  no  at- 
tention whatever  to  the  second  count.  A  general  demurrer 
was  filed  to  the  indictment  which  was  overruled  by  the 
court.  The  overruling  of  the  demurrer  is  made  the  prin- 
cipal ground  of  the  errors  complained  of.  The  case  having 


March,  1876.]  MCCARTHY  v.  TEB.  OP  WYOMING.  315 

Opinion  of  the  Court — Fisher,  C.  J. 

been  submitted  to  a  jury  they  retired  and  returned  a 
verdict  of  guilty  on  the  third  and  fifth  counts  of  the  indict- 
ment, and  after  motions  for  a  new  trial,  in  arrest  of  judg- 
ment, etc.,  the  defendant  was  called  for  sentence,  when  the 
record  shows  the  following  proceedings  were  had,  on  the 
third  count  of  the  indictment:  "It  is  therefore  ordered  and 
adjudged  that  the  defendant,  Timothy  McCarthy,  pay  a  fine 
of  two  hundred  dollars,  and  stand  committed  until  said 
fine  be  paid."  The  form  of  sentence  on  the  verdict  on  the 
fifth  count  is  in  precisely  the  same  language.  The  counsel 
for  the  plaintiff  in  error  bikes  the  ground  that  the  demurrer 
should  have  been  sustained  because  the  record  does  not 
show  that  the  indictment  was  duly  found  and  returned  in 
open  court. 

That  the  indictment  is  bad  for  want  of  certainty,  that  it 
is  indefinite  in  not  setting  out  with  sufficient  certainty 
wherein  the  bills  or  vouchers  alleged  to  have  been  pre- 
sented and  approved  by  the  board  of  county  commissioners 
were  fraudulent,  to  whom  they  were  due,  nor  the  particu- 
lar items  in  said  bills  or  vouchers  upon  whieh  the  charge 
of  fraudulent  action  rests.  They  also  say  that  the  court  in 
passing  sentence  on  the  accused  failed  to  set  out  to  whom 
the  fines  were  to  be  paid,  and  that  in  default  of  their  pay- 
ment the  court  failed  to  designate  where  the  defendant  was 
to  be  imprisoned.  In  support  of  the  first  position  as 
above  stated  the  counsel  for  plaintiff  in  error  cites  Laws  of 
Wyoming,  1869,  pp.  157-60 ;  also  Id.  149-50,  157,  sees.  11, 
12,  13  et  seg. ;  also  Wharton's  C.  L.  sees.  364,  366,  374-76 ; 
2  McLean;  5  Denio ;  Valkeriberg  v.  Stat?,,  11  Ohio;  11  Am. 
R.  209 ;  1  Iowa,  205 ;  and  a  large  number  of  other  author- 
ities. On  the  second  point  relating  to  the  defect  in  the 
form  of  passing  judgment  he  cited  various  authorities. 

The  general  rule  relating  to  indictments  is,  that  they 
should  set  out  affirmatively  sufficient  to  constitute  in  them- 
selves allegations  to  make  out  the  offense  charged,  and  leave 
nothing  to  be  supplied  by  inference  or  proof.  It  will  be 
found  on  an  examination  of  the  record  in  this  ease  that  the 


316  MCCARTHY  v.  TEB.  OF  WYOMING.      [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

statutory  offense  is  not  charged  from  the  fact  that  the  indict- 
ment fails  to  allege  that  the  defendant  in  the  court  below- 
committed  the  offense  with  which  he  stood  charged,  while 
in  discharge  of  his  official  duties  as  county  clerk ;  that  this 
is  required,  to  comply  with  the  words  of  the  statute  :  sec.  96, 
page  127,  Laws  of  Wyoming,  1869.  And  again,  the  indict- 
ment does  not  state  wherein  the  defendant  was  guilty  of 
malfeasance  ;  it  simply  charges  that  Timothy  McCarthy  was 
clerk,  etc.,  and  that  he  presented  certain  bills  or  vouchers, 
and  did  demand  and  receive  moneys  on  certain  items  con- 
tained in  said  bills  or  vouchers,  to  which  he  was  not  entitled, 
and  thereby  was  "  willfully  and  corruptly  guilty  of  malfea- 
sance." This  would  seem  to  be  merely  a  conclusion  of  law, 
and  fails  to  say  what  the  items  in  the  bills  or  vouchers  con- 
sisted of,  leaving  the  omissions  to  be  supplied  by  the  evi- 
dence or  to  be  inferred.  This  we  think  is  altogether  too 
uncertain  and  indefinite.  In  the  case  of  Tibbals  v.  The  State, 
5  Wis.  596,  this  doctrine  is  very  fully  stated,  in  a  case  in 
which  an  officer  was  indicted  for  making  a  false  return  on  a 
writ  of  replevin ;  in  that  case  the  indictment  set  out  the  false 
return  more  fully  than  the  prosecution  has  done  in  this  case, 
but  failed  to  state  the  particular  item  of  the  return  alleged 
to  be  false ;  there  was  sufficient  to  show  the  falsity  of  the 
return.  But  the  supreme  court  held  that  the  indictment 
was  entirely  defective,  and  in  the  opinion  says :  It  is  not 
enough  to  charge  that  the  defendant  below  did  falsely  return, 
etc.,  but  must  state  wherein  the  return  is  false.  This,  we 
think,  is  a  parallel  case,  and  that  it  is  not  sufficient  to  state 
that  the  defendant  below  demanded  and  received  items  in 
an  account  to  which  he  was  not  entitled,  and  thereby  will- 
fully and  corruptly  was  guilty  of  malfeasance  ;  but  it  must, 
before  it  can  stand,  specify  those  items  definitely,  and  the 
prosecuting  officer  having  failed  to  thus  particularize  the 
items,  the  indictment  becomes  bad  for  want  of  certainty. 
This  is  especially  so  when  we  find  that  the  statutes  of  W"yo- 
ming  of  1869,  after  enumerating  the  fees  to  be  allowed  to 
the  county  clerk,  provides  that  he  shall,  for  all  services  not 


March,  1876.]        GLAPCKE  v.  O'BRIEN.  317 


Statement  of  Facts. 


enumerated  in  the  statute,  be  allowed  a  reasonable  compen- 
sation for  other  services;  and  there  is  nothing  in  the  indict- 
ment to  show  that  the  items  alleged  to  have  been  fraudu- 
lently inserted  into  McCarthy's  accounts  were  not  items  for 
which  he  was  to  be  allowed  a  reasonable  compensation. 
The  indorsement  on  the  instrument,  we  think,  is  not  so  de- 
fective as  to  seriously  affect  the  indictment,  but  it  is  not  in 
the  form  suggested  in  the  statute.  The  form  of  the  sentence 
is  claimed  to  be  defective  from  the  fact  that  the  learned 
judge  below  failed  to  designate  to  whom  the  fine  was  to  be 
paid,  or  where  the  defendant  should  be  confined  in  the 
event  of  his  failure  to  pay  the  fine. 

We  do  not  think  it  necessary  to  pass  upon  these  questions 
from  the  fact  that  the  defects  in  the  indictment  are  sufficient 
to  set  the  whole  proceedings  aside,  independent  of  any  other 
questions. 

Proceedings  reversed  and  case  remanded. 


GLAFCKE  v.  O'BRIEN. 

PROCEEDINGS  IN  ERROR. — PRACTICE — The  mere  filing  of  the  statutory 
undertaking  in  the  district  court  by  the  plaintiff  in  error,  will  not 
stay  proceedings  in  that  court.  All  the  proceedings  necessary  to 
take  the  case  to  the  supreme  court  must  be  perfected,  and  it  is  only 
when  that  is  done  that  the  undertaking  will  act  as  a  supersedeas. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

Motion  to  affirm  the  judgment  of  the  district  court.  Judg- 
ment was  rendered  in  the  district  court  in  favor  of  O'Brien 
againt  Glafcke.  Glafcke  thereupon  filed  his  undertaking 
in  proceedings  in  error  in  the  district  court,  as  required  by 
the  statute,  but  took  no  further  action  to  carry  the  case  to 
the  supreme  court.  The  plaintiff's  attorney  then  obtained 
an  order  that  said  cause  be  placed  on  the  docket  of  the  su- 
preme court,  and  that  the  defendant  in  the  district  court 
show  cause  why  the  judgment  of  said  court  should  not  be 
affirmed. 


318  JENKINS  v.  TERRITORY  OF  WYOMING.    [Sup.  Ct. 


Statement  of  Facts. 


E.  P.  Johnson,  for  the  motion. 

D.  McLaughlin,  in  opposition  thereto,  contended  that  the 
cause  was  improperly  docketed  in  the  supreme  court,  and 
that  no  action  could  then  be  taken  thereon. 

By  the  Court,  FISHER,  C.  J. :  And  now,  to  wit,  March 
28,  1876,  the  court,  after  consideration  of  the  rule  and  an- 
swer, find  that  in  order  to  obtain  a  stay  of  execution,  or  to 
act  as  a  supersedeas,  as  provided  in  the  statutes  of  1873, 
the  plaintiff  in  error  should  commence  his  proceedings  in 
error,  by  filing  his  petition  and  a  transcript  of  the  case  in 
the  supreme  court,  together  with  an  undertaking,  as  pro- 
vided by  the  statutes.  And  that  the  mere  filing  of  an  un- 
dertaking, without  commencing  any  other  proceedings  in 
error,  is  not,  in  itself,  sufficient  to  give  a  stay  of  proceed- 
ings or  act  as  supersedeas. 


JENKINS  v.  THE  TERRITORY  OF  WYOMING. 

PRACTICE — PROCEEDINGS  IN  ERROR. — If  the  plaintiff  in  error  fail  to  com- 
ply with  the  rules  of  the  supreme  court,  in  having  the  record  pre- 
pared as  prescribed  by  such  rules,  the  proceedings  in  error  will  be 
dismissed,  and  a  writ  of  procedendo  awarded  to  the  district  court. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

The  plaintiff  was  tried  in  a  justice's  court  for  a  misde- 
meanor, found  guilty  and  sentenced  to  pay  a  fine.  On  ap- 
peal to  the  district  court,  the  judgment  of  the  lower  court 
was  affirmed.  The  plaintiff  in  error  then  filed  her  petition 
in  error  in  the  supreme  court.  The  attorney  for  the  defend- 
ant in  error  now  moves  to  dismiss  the  cause  for  the  follow- 
ing reasons,  among  others,  to  wit :  Because  the  appellant  or 
plaintiff  in  error  has  not  caused  the  transcript  attached  to 
the  petition  in  error  in  this  cause  to  be  paged,  and  has  not 
caused  any  marginal  notes  to  be  placed  on  said  transcript  in 


March,  1876.]  JENKINS  v.  TERRITORY  OF  WYOMING.      319 

Opinion  of  the  Court — Fisher,  C.  J. 

their  appropriate  places,  indicating  the  several  parts  of  the 
pleading  in  the  cause,  the  exhibits,  order  of  the  court  and 
bill  of  exceptions. 

W.  W.  Corlett,  for  the  motion. 
E.  P.  Johnson,  opposed. 

By  the  Court,  FISHER,  C.  J. :  Motion  to  dismiss  plain- 
tiff's appeal.  And  now,  to  wit,  March  28,  1876,  after  hear- 
ing arguments  of  counsel  for  and  against  the  motion,  it  is 
ordered  that  the  said  motion  be  sustained,  and  procederido 
to  the  court  below  be  awarded. 


EEPOETS  OF  CASES 


DETERMINED   IN 


THE   SUPREME   COURT 

OF 

WYOMING  TERRITORY. 
MARCH  TERM,  1877. 


TERRITORY  OF  WYOMING  v.  RITTER  ET  AL. 

OFFICIAL  BONDS — LIABILITY  OF  SURETIES. — Under  the  statutes  of  the 
territory  of  Wyoming,  which  provide  that  the  judges  of  probate  of 
the  respective  counties  shall  be  ex  officio  county  treasurers  of  the 
same,  an  undertaking  given  for  the  faithful  performance,  etc.,  oi 
the  duties  of  probate  judge,  is  not  an  undertaking  for  such  perform- 
ance of  duties  of  county  treasurer  by  the  same  person,  and  the 
sureties  on  the  bond  for  the  former  are  not  liable  for  the  defaults 
and  malfeasance  of  such  probate  judge  while  acting  as  county 
treasurer.  To  make  a  person  an  ex  officio  officer,  by  virtue  of  his 
holding  another  office,  does  not  merge  the  two  into  one. 

ERROR  to  the  Second  District  Court  for  Albany  County. 

A  full  statement  of  the  case  is  contained  in  the  opinion  of 
the  court. 

M.  C.  Brown,  for  plaintiff  in  error. 

The  cause  of  action  stated  in  the  plaintiff's  petition  in  the 

court  below  is  alleged  to  have  accrued  on  the  official  bond 

of  George  \V.  Hitter,  as  judge  of  probate  of  the  county  of 

Albany,  territory  of  Wyoming.     The  defendants  interposed 

21  321 


322  TERRITORY  OF  WYOMING  v.  HITTER.    [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

a  demurrer  to  the  plaintiff's  petition,  alleging  these  grounds : 
1.  A  defect  of  parties  plaintiff ;  2.  That  the  facts  stated  are 
not  sufficient  to  constitute  a  cause  of  action,  etc.  And  after 
argument  the  court  below  sustained  the  demurrer,  and  the 
plaintiff  alleges  error  of  the  court  in  so  sustaining  the  de- 
fendant's demurrers. 

As  to  the  point  made  by  the  demurrer  as  to  the  parties 
plaintiff,  we  simply  say  there  is  no  distinction  between  "  the 
territory  "  and  "  the  people  of  the  territory  :  "  People  v.  Love, 
19  Cal.  22 ;  and  see  decision  of  court  below  on  this  point. 

The  next  point  urged  in  argument  to  sustain  the  demur- 
rer in  court  below  is  this :  The  condition  of  the  bond  sued 
on  is  not  the  condirion  of  the  bond  of  the  judge  of  probate 
as  provided  by  law :  For  condition  of  statutory  bond  of 
judge  of  probate,  see  Revised  Statutes,  p.  206,  sec.  1 ;  for 
condition  of  bond  sued  on,  see  page — of  record.  It  will  be 
observed  that  so  much  of  the  statutory  condition  as  refers 
to  the  duties  of  the  judge  of  probate  as  ex  officio  justice  of 
the  peace  and  county  treasurer  is  wholly  omitted  from  the 
bond  sued  on.  It  will  be  further  observed  that  the  breach 
of  the  bond  assigned  in  plaintiff's  petition  is  the  failure  of 
the  officer  in  the  duties  required  of  him  by  law  as  "  ex  officio 
county  treasurer."  A  further  examination  of  the  bond  sued 
on  shows  that  there  is  a  general  condition  to  the  effect  that 
"  he  (the  judge  of  probate)  shall  perform  all  the  duties  re- 
quired of  him  by  law." 

Now,  then,  whether  there  is  error  in  the  proceeding  of  the 
court  below,  as  alleged  in  plaintiff's  petition,  must  be  deter- 
mined by  this  question,  i.  e.,  when  there  are  several  conditions 
required  by  law  to  be  inserted  in  a  bond,  in  addition  to  the 
general  condition  that  he  shall  perform  all  duties,  etc.,  and 
these  special  conditions  are  omitted,  and  the  general  condi- 
tion only  retained  in  the  bond,  does  such  general  condition 
cover  and  comprehend  each  and  all  of  such  special  condi- 
tions ?  If  yes,  then  there  is  error  in  the  record ;  if  no,  there 
is  no  error. 

We  cheerfully  admit  what  is  claimed  by  the  defense  to  be 


March,  1877.]  TERRITORY  OF  WYOMING  v.  HITTER.        323 

Argument  for  Plaintiff  in  Error. 

a  general  rule,  i.  e.,  that  sureties  on  a  bond  are  bound  only 
to  the  extent  of  the  letter  of  the  obligation.  We  further 
admit  that  where  the  terms  of  a  contract  are  clear,  definite 
and  certain,  there  is  but  one  thing  for  a  court  to  do  in  refer- 
ence thereto,  and  that  is,  to  enforce  the  obligation  according 
to  the  clear,  unquestioned  terms  of  the  instrument ;  but  where 
there  is  uncertainty  or  ambiguity  in  the  terms  of  the  instru- 
ment, courts,  either  of  law  or  equity,  will  construe  it  accord- 
ing to  the  clear  intent  of  the  parties,  though  it  prevails  against 
the  letter  of  the  contract :  Kent's  Com.  12th  ed.  vol.  2,  p.  555 
et  seq.;  Cook  v.  Graham,  3  Cranch,  220 ;  Parson's  Con.,  6th 
ed.,  p.  498  et  seq. 

We  say  the  meaning  of  the  instrument  sued  on,  consid- 
ered in  connection  with  the  law  is  not  clear,  and  under  the 
rule  settled  by  Kent  calls  for  and  demands  construction  by 
the  court.  The  instrument  being  one  that  calls  for  con- 
struction, the  sense  of  it  must  l>e  sought  from  the  law  under 
which  it  was  drawn :  2  Kent,  556.  It  is  evident  from  the 
reading  of  the  instrument  in  question,  that  it  was  intended 
as  a  bond  for  the  faithful  performance  of  official  duty.  What 
the  particular  duty  to  be  performed  and  the  obligations  of  the 
sureties  were,  can  only  be  ascertained  by  comparing  the  con- 
tract or  obligation  with  the  statute. 

Contracts,  particularly  bonds,  and  the  law  must  be  con- 
strued in  part  mater ia :  Bouvier's  Inst.  41,  259,  260,  285, 
286,  364  ;  2  Kent.  459,  460,  556  and  notes  ;  Story's  Conflict 
of  Laws,  225-233. 

Jf,  then,  the  statute  is  to  be  construed  with  the  bond  in 
order  to  determine  the  liabilities  of  the  sureties,  careful  ex- 
amination of  the  statute  becomes  necessary:  See  Revised 
Statutes,  art.  2,  sec.  1,  206. 

The  statute  referred  to  provides  that  there  shall  be  a  judge 
of  probate  for  each  county,  who  shall  be  ex  officio  justice  of 
the  peace  and  county  treasurer ;  who  shall  execute  a  bond 
in  "  the  penal  sum  of  ten  thousand  dollars,"  conditioned 
upon  the  faithful  performance  of  the  duties  required  of  him 
by  law  as  such  judge  of  probate,  ex  offido  justice  of  the  peace 
and  county  treasurer. 


324  TERRITORY  OF  WYOMING  ».  RITTER.    [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

Now  the  bond  sued  on  makes  no  reference  to  tx  officio 
justice  of  the  peace  and  treasurer,  nor  does  it  contain  the 
special  condition  as  to  paying  money,  etc.  If  the  bond,  in 
addition  to  the  words  "  judge  of  probate,"  contained  the 
words  '•  ex  officio  justice  of  the  peace  and  county  treasurer," 
there  would  be  no  question,  it  is  believed,  as  to  the  liability 
of  the  sureties  under  the  breach  assigned  in  the  plaintiff's 
petition,  because  it  has  long  been  settled  that  where  the 
special  conditions  required  by  law  to  be  inserted  in  a  bond 
are  omitted,  and  these  are  covered  by  and  comprehended 
within  the  general  condition,  the  sureties  are  liable  for  a 
breach  of  such  bond  to  the  same  extent  as  if  it  contained 
the  very  words  of  the  statute  :  State  v.  Findley,  10  Ohio,  51 ; 
Farrar  $  Brown  v.  United  States,  5  Peters,  373 ;  Supervisors 
etc.  v.  Van  Campen,  3  Wend. ;  Clark  and  others  v.  Potter 
County,  1  Penn.  159.  Nor  do  the  above  authorities  contro- 
vert or  conflict  with  the  theory  that  sureties  are  bound  by 
the  letter  only  of  their  obligation,  for  when  we  remember 
the  rule,  that  the  bond  and  law  are  construed  in  pari  materia, 
the  law  fixing  and  establishing  the  duties  to  be  performed, 
and  the  obligation  being  the  faithful  performance  of  all  du- 
ties required  by  law,  the  contract  and  the  law  together  form 
the  letter  of  the  obligation  of  the  sureties,  and  a  failure  in 
any  duty  is  a  breach  of  the  letter  of  the  obligation.  How, 
then,  would  it  be  if  the  words  "  ex  officio  justice  of  the  peace 
and  county  treasurer  "  were  omitted  from  the  bond  as  well  as 
the  special  conditions  required  by  law?  Would  the  liabili- 
ties of  the  sureties  be  in  any  way  effected  or  changed?  It 
is  believed  that  they  would  not,  and  that  they  would  yet  be 
liable  under  the  letter  of  the  obligation  by  the  terms  used 
in  the  general  condition. 

The  probate  act  (Revised  Statutes,  p.  206),  declares  there 
shall  be  a  judge  of  probate  for  each  county.  The  general 
election  law  in  force  at  the  time  this  bond  was  given  pro- 
vides for  the  election  of  judge  of  probate.  Revised  Statutes, 
p.  297,  and  the  organic  act  provide  for  the  establishment  of 
that  office  :  See  Organic  Act,  sec.  9.  But  there  was  no  law 


March,  1877.]  TERRITORY  OF  WYOMING  v.  RITTER.        325 


Argument  for  Plaintiff  in  Error. 


at  the  time  this  bond  was  given  that  provided  for  any  such 
office  or  officer  as  county  treasurer.  The  probate  act  re- 
ferred to  provides  that  the  judge  of  probate  (the  officer 
elected  by  the  people)  shall  qualify  by  taking  the  oath  of 
office  to  support  the  constitution,  etc.,  and  to  perform  the 
duties  required  of  him  by  law,  nothing  said  about  treasurer 
thus  far,  and  that  he  shall  execute  a  bond  in  the  penal  sum 
of  ten  thousand  dollars,  conditioned  for  the  faithful  perform- 
ance of  the  duties  required  of  him  by  law  as  such  judge  of 
probate,  ex  offieio  justice  of  the  peace  and  county  treasurer. 
That  is,  his  office  is  judge  of  probate.  It  is  the  judge  of 
probate  who  is  qualifying  in  office.  It  is  the  judge  of  pro- 
bate who  is  giving  a  bond,  and  no  other  officer,  but  the  con- 
dition of  his  bond  requiring  him  to  perform  other  duties 
than  purely  probate  business. 

But  it  is  claimed  that  the  letter  of  the  obligation  covers 
probate  business  only.  All  persons  are  presumed  to  know 
the  laws  under  which  they  live  and  contract.  These  sure- 
ties are  presumed  to  know  what  duties  are  required  by  law 
to  be  performed  by  the  judge  of  probate.  They  are  pre- 
sumed to  know  that  but  one  bond  of  ten  thousand  dollars  is 
required  of  him,  and  that  such  penal  sum  covered  all  duties 
required  by  law.  They  are  presumed  by  law  to  know  that 
the  duty  of  receiving  and  paying  out  moneys  was  required 
of  the  judge  of  probate. 

Construing  the  contract  and  the  law  together,  then,  and 
what  is  the  result.  The  bond  is  conditioned  for  faithful 
performance  of  all  duties.  A  part  of  the  duty  required  by 
law  is  receiving  and  disbursing  moneys.  The  breach  of  the 
obligation  assigned  is  the  failure  to  disburse.  But  it  is  said 
there  are  two  offices,  and  the  obligation  sued  on  is  for  faith- 
ful performance  of  duties  of  judge  of  probate,  and  is  not  in- 
tended to  cover  the  treasurer's  office.  If  there  are  two  offices 
there  must  be  two  bonds.  The  law  only  requires  one  bond, 
and  that  is  the  bond  of  judge  of  probate,  but  conditioned,  it 
is  said,  for  faithful  performance  of  the  duties  of  three  dis- 
tinct and  separate  offices. 


326  TERRITORY  OF  WYOMING  v.  HITTER.    [Sup.  Ct 

Argument  for  Plaintiff  in  Error. 

If  this  be  true,  how  can  liability  in  the  different  offices  be 
determined  ?  Are  the  sureties  on  this  statutory  obligation 
liable  in  the  sum  of  ten  thousand  dollars  for  failure  of  duty 
as  justice  of  the  peace,  and  in  the  same  amount  as  treasurer? 
If  yes,  then  they  are  liable  to  the  extent  of  thirty  thousand 
dollars.  Under  such  circumstances,  what  would  be  said  as 
to  the  letter  of  the  obligation  ?  But  the  whole  obligation  is 
ten  thousand  dollars,  and  it  is  impossible  to  determine  what 
portion  of  this  amount  is  intended  to  secure  the  performance 
of  the  duties  of  each  of  these  separate  offices,  if  they  are 
separate  offices. 

When  the  consideration  of  the  contract  is  single  and  en- 
tire, the  obligation  must  be  taken  as  a  whole,  it  cannot  be 
divided:  See  R.  Stat.  page  206;  Bouvier's  Institutes,  vol.1, 
page  269,  et  seq. ;  Parson's  Contracts,  vol.  2,  page  517.  So 
we  say,  as  the  obligation  is  to  be  taken  as  a  whole,  and  is 
indivisible.  It  is  an  obligation  to  secure  performance  of 
the  duties  of  one  office,  and  that  the  office  of  judge  of  pro- 
bate, the  only  office  created  by  law.  The  term  ex  offivio, 
"  by  virtue  of,"  as  used  here,  is  simply  intended  to  inter- 
pose other  and  additional  duties  on  the  office  of  judge  of 
probate :  People  v.  Leet  et  a?.,  13  111.  261.  In  this  case  the 
supreme  court  of  Illinois  say,  in  construing  a  statute  pro- 
viding that  the  sheriff  shall  be  ex  officio  collector,  etc.  Suit 
on  official  bond :  "  The  sheriff  does  not  hold  two  separate 
and  distinct  offices,  but  performs  the  duties  previously  be- 
longing to  two  offices.  He  is  styled  ex  officio  collector,  but 
this  expression  is  used  to  designate  a  particular  breach  of 
his  duties." 

In  Governor  v.  Redgway,  12  111.  44,  and  in  Compton  v. 
People,  Id.  290,  it  was  held  "  that  sureties  upon  an  official 
bond,  conditioned  for  the  discharge  of  the  duties  imposed 
upon  him  within  the  scope  of  office." 

In  North  Carolina  it  was  held  that  a  sheriff  who  by  virtue 
of  his  office  was  collector  of  taxes,  held  but  one  office,  and 
the  legislature  could  not  divide  it :  6  Am.  R.  754. 

In  New  York  it  was  held,  when  the  office  was  clerk  of 


March,  1877.]  TERRITORY  OF  WYOMING  v.  HITTER.        327 

Argument  for  Plaintiff  in  Error. 

the  city  and  county  of  New  York  and  was  also  clerk  of  com- 
mon pleas,  that  it  was  one  and  the  same  office  :  Warner  v. 
The  People,  2  Denio,  272. 

Bnt  we  say  no  possible  construction  will  permit  the  con- 
clusion that  the  judge  of  probate  and  ex  offido  treasurer  are 
two  and  distinct  and  separate  offices,  because,  if  such  were 
the  fact,  some  provision  must  be  made  to  fill  the  office  of 
treasurer.  An  office  can  be  filled  in  this  territory  only  as 
provided  by  organic  act.  This  act  provides  that  all  town- 
ship, district  and  county  officers  *  *  *  shall  be  elected 
or  appointed  as  provided  by  law  :  See  Organic  Act,  sec.  7. 
If  the  office  of  treasurer  is  established  by  law,  then  the  law 
must  provide  for  its  being  filled,  and  the  only  way  it  could 
be  filled  would  be  by  election  or  appointment.  No  such 
provision  is  made  by  law  for  filling  treasurer's  office  ;  and 
so,  if  there  are  two  offices  as  contended,  the  act  of  the  legis- 
lature providing  for  judge  of  probate  filling  the  office  is  in 
direct  conflict  with  the  organic  act,  and,  therefore,  void, 
ft  is  a  well  settled  rule  of  law  that  courts  will  not  give  a 
statute  a  construction  rendering  it  void,  if  from  the  context 
it  will  bear  a  construction  such  as  to  harmonize  with  the 
fundamental  law. 

Again,  if  it  is  said  there  are  two  offices,  and  the  legisla- 
ture has  undertaken  to  fill  the  second  office  by  using  the 
term  ex  officio  in  connection  with  the  first  office,  the  act 
would  be  void  as  to  that  part  of  it.  It  would  be  an  attempt 
to  fill  an  office  without  election  or  appointment  by  lawful 
authority,  and  by  appointment  by  legislation.  Legislature 
lias  no  appointing  power:  People  ex  rel.  Le  Roy  v.  Hurlburt 
f.f  al,  9  Am.  R.  103,  especially  p.  116  ;  also  Organic  Act,  sees. 
2  and  7.  I  think  it  clear,  without  argument  or  presentation 
of  authority,  that  a  man  cannot  be  lawfully  legislated  into 
office  or  out  of  it.  If  the  construction  of  the  law  contended 
for  by  the  defense  is  to  prevail  that  there  are  two  offices, 
then  we  say  the  act  of  the  legislature  must,  for  the  reasons 
before  presented,  be  held  as  unconstitutional  and  void.  But 
on  the  other  hand,  if  the  court,  in  pursuance  of  the  general 


328  TERRITORY  OF  WYOMING  v.  RITTER.    [Sup.  Ct. 

Argument  for  Defendants  in  Error. 

rule,  place  such  a  construction  upon  the  statute  as  to  make 
it  operative,  then  we  say  there  is  but  one  office,  and  that  is 
the  office  of  judge  of  probate. 

But  the  court  below  so  held  upon  this  point,  and  we  be- 
lieve in  this  respect  at  least  the  defense  is  strong  and  con- 
clusive, and  we  commend  it  to  the  court.  But  it  may  be 
said  that  no  additional  duties  can  be  lawfully  imposed  upon 
judge  of  probate.  Upon  this  point  we  ask  the  examination 
of  the  case  in  20  Wallace,  375.  No  additional  judicial  du- 
ties can  be  imposed,  but  ministerial  duties  can  be. 

In  conclusion,  we  say  there  is  one  office — judge  of  pro- 
bate. There  is  one  bond,  and  that  is  the  bond  of  judge  of 
probate  ;  and  that  the  general  condition  covers  and  compre- 
hends all  others.  And  the  sureties  and  the  bond  sued  on 
are  liable  for  all  acts  of  Geo.  W.  Hitter,  as  judge  of  pro- 
bate, and  that  as  judge  of  prolate,  Ritter  was  required  to 
receive  and  pay  out  money,  and  a  failure  to  pay  and  account 
for  moneys  as  alleged  in  the  petition  is  such  a  breach  of  the 
bond  sued  on  as  makes  his  sureties  liable. 

W.  W.  Corlett,  for  defendants  in  error. 

This  was  an  action  brought  on  an  official  bond  given  by 
the  defendant,  Geo.  W.  Ritter,  as  probate  judge  of  said  Al- 
bany county,  for  the  faithful  performance  of  his  duties,  as 
said  probate  judge,  and  provided  as  the  condition  thereof, 
that  if  said  Ritter  shall  well  and  faithfully  perform  the  du- 
ties of  said  office  of  probate  judge  according  to  law,  then 
the  bond  to  be  void  ;  otherwise  in  force.  The  bond  was  given 
for  the  sum  of  ten  thousand  dollars,  and  the  other  defend- 
ants are  sureties  on  the  bond.  The  sureties  demurred  to 
the  petition,  which  demurrer  was  sustained.  Plaintiff  ex- 
cepted,  and  prosecuted  said  petition  in  error  to  reverse  the 
judgment  on  said  demurrer,  which  is  the  only  question  in 
the  case.  The  petition,  after  setting  out  the  terms  of  the 
bond,  including  the  condition  as  above  quoted,  proceeds  to 
allege  that  said  Ritter  did  not  perform  his  duties,  and  as 


March,  1877.]  TuKKiTofcY  OF  WYOMING  v.  HITTER.        829 

Argument  for  Defendants  in  Error. 

required  by  law  in  this,  that  as  probate  judge  and  county 
treasurer  he  did  receive  fifty-five  thousand  dollars,  and  did 
abscond  with  the  same  and  fail  to  pay  the  same  over,  etc. 
The  liability  of  the  defendants  in  the  case  is  of  course  de- 
termined by  the  terms  of  the  bond  itself.  No  artful  plead- 
ing of  matters  of  law  can  change  the  rule  of  liability, 
neither  can  such  pleading  change  the  law  itself,  or  make  a 
cause  of  action,  for  matters  of  law  ought  not  to  be  pleaded 
at  all,  and  counsel  make  a  grave  mistake  if  they  imagine 
that  by  pleading  matters  of  law,  or  that  by  pleading  as  the 
legal  effect  of  the  bond  something  not  warranted  by  the 
terms  of  the  bond  as  set  out  in  the  petition,  they  can  inject 
into  the  case  an  element  by  which  the  effect  of  the  demurrer 
can  be  avoided.  From  an  inspection  of  the  petition  it  will 
be  readily  seen  that  the  default  of  Hitter,  as  alleged,  was 
one  occurring  in  his  capacity  as  treasurer,  he  being  ex 
officio  treasurer  of  the  county  by  virtue  of  the  law.  There 
are  two  distinct  offices,  the  duties  of  which  are  performed  by 
one  person. 

That  the  bond  is  not  in  the  form  required  by  law  is  not 
disputed.  The  law  declares  that  before  the  probate  judge 
(who  it  declares  shall  be  ex  officio  justice  of  the  peace  and 
county  treasurer)  enters  upon  the  duties  of  his  office,  he 
shall  execute  a  bond  to  the  territory  in  the  penal  sum  of 
ten  thousand  dollars,  *  *  *  conditioned  for  the  faith- 
ful performance  of  the  duties  required  of  him  by  law  as 
such  probate  judge,  ex  officio  justice  of  the  peace  and  county 
treasurer,  and  for  the  faithful  application  and  payment  of 
all  moneys  and  effects  that  may  come  into  his  hands  in  exe- 
cution of  the  duties  required  of  him  by  law  as  such  probate 
judge  and  ex  officio  justice  of  the  peace  and  county  treas- 
urer. The  bond  as  given  requires  him  to  perform  his  du- 
ties as  probate  judge ;  but  wholly  omits  any  requirement 
whatever  as  to  his  duties  as  justice  of  the  peace  and  county 
treasurer:  See  Laws  of  Wyoming,  p.  206,  sec.  17.  The 
contention  in  this  case  is  this  :  On  the  one  hand  it  is  claimed 
that  the  duties  of  the  probate  judge,  as  such,  include  his 


TERRITORY  OP  WYOMING  v.  RITTER.    [Sup.  Ct. 


Argument  for  Defendants  in  Error. 


duties  as  county  treasurer  and  justice  «of  the  peace,  and 
therefore  the  bond  which  holds  him  for  the  performance  of 
his  duties  as  probate  judge,  holds  him  likewise  to  the  per- 
formance of  his  duties  as  justice  of  the  peace  and  county 
treasurer,  because  the  latter  are  included  in  the  former. 
On  the  other  hand,  the  defendants  claim  that  the  duties  of 
Ritter  as  justice  of  the  peace  and  county  treasurer  are  not 
included  in  his  duties  as  probate  judge,  nor  are  they  to  be 
performed  as  such  ;  but  on  the  other  hand  are  additional  to 
and  beyond  his  duties  as  probate  judge,  and  have  to  be  per- 
formed in  a  capacity  entirely  different  from  that  of  probate 
judge. 

The  office  of  probate  judge  is  one  provided  by  the  organic 
act.  It  is  a  judicial  office,  as  the  terms  themselves  import. 
As  a  probate  judge,  he  constituted  a  part  of  the  judiciary 
of  the  territory  and  of  its  judicial  system,  and  as  a  probate 
judge,  it  has  been  decided  that  not  even  the  legislature  can 
confer  upon  him  any  judicial  power,  save  and  except  such 
power  as  naturally,  according  to  the  general  legal  under- 
standing, appertains  to  the  office  as  such  :  Ferris  v.  Tkigley, 
20  Wallace,  375 ;  25  Cal.  520  ;  6  Ohio ;  9  Cal.  286. 

Whatever  the  probate  judge  does  as  a  probate  judge  he 
does,  therefore,  as  a  judicial  act.  He  may  well  be  author- 
ized to  do  other  acts  and  perform  other  duties  by  and  under 
the  law,  but  when  he  thus  acts  he  does  not  act  probate 
judge.  Any  other  view  would  be  absurd.  A  judicial  act 
must  be  the  determination  of  some  controversy,  according 
to  law,  between  proper  parties.  Therefore,  when  a  court 
or  judge  acts  as  such,  it,  in  the  very  nature  of  things,  per- 
forms a  judicial  function.  Now,  in  the  very  nature  of 
things,  whatever  a  man  does  as  a  county  treasurer  cannot 
be  a  judicial  act.  It  must  be  a  ministerial  act,  and  nothing 
else.  Therefore,  to  say  that  when  Ritter  received  the  county 
money  he  did  it  as  probate  judge,  is  to  allege  that  he  did  a 
judicial  act,  when,  in  the  very  nature  of  things,  it  could  not 
be  such.  The  argument  of  the  plaintiff  brings  him  to  this 
dilemma,  and  no  reasoning  can  extricate  him  from  it.  This 


March,  1877.]  TEUIUTOKV  OK  WYOMING  v.  UITTEK.        331 


Argument  for  Defendants  in  Error. 


tribunal  miglit  be  empowered  by  law  to  receive  and  pay  out 
the  public  revenue  to  this  territory,  but  in  doing  so,  would 
any  one  pretend  that  it  did  so  in  its  capacity  of  a  court  ?  A 
court  is  a  place  where  justice  is  judicially  administered. 
Will  it  be  pretended  that  if  the  person  who  accidentally 
fills  the  position  of  judge  of  a  court,  also  by  law  receives 
and  pays  public  moneys  out,  that  in  doing  so  he  is  judi- 
cially administering  justice  ?  And  yet,  if  he  is  doing  so  as 
a  court,  that  is  just  what  he  is  doing,  because  a  court,  as 
such,  can  do  nothing  else.  The  legislative  intent,  in  the 
case  of  our  probate  judges,  was  that  they  should  also  act  as 
justices  of  the  peace.  Now,  if  the  duties  of  a  probate  judge, 
according  to  the  legislative  intent,  include  those  of  a  justice 
of  the  peace,  then  we  would  have  this  anomalous  state  of 
affairs,  that  when  'the  probate  judge  entertained  a  common 
law  action  of  assumpsit  in  favor  of  A.  against  B.,  for  fifty 
dollars  and  costs,  he  would  be  acting  as  probate  judge,  but 
as  probate  judge,  according  to  the  case  of  Ferris  v.  Tlugley, 
he  could  not  entertain  such  an  action,  would  have  no  juris- 
diction. 

Again,  seeking  the  legislative  intent,  if  the  legislature 
considered  that  the  probate  judge  was  to  perform  the  duties 
of  justice  of  the  peace  and  County  treasurer,  as  probate 
judge,  why  did  they  provide  that  he  should  be  called  a  jus- 
tice of  the  peace  at  all  ?  The  suggestions  are  all  very  per- 
tinent, as  showing  the  meaning  of  the  legislature  in  passing 
the  section  of  law  above  alluded  to. 

The  legislative  intent  is  further  manifested,  in  fact  made 
most  clear,  by  other  sections  of  the  law,  to  which  attention 
is  now  directed :  see  Laws  of  Wyoming,  206-209,  sees.  4-15  ; 
560-564,  sees.  42-61  ;  267,  sec.  96. 

Having  thus  considered  these  general  and  to  some  extent 
preliminary  questions,  let  us  see  what  the  rule  is  as  to  the 
liability  upon  a  bond,  and  as  to  the  right  of  action  thereon. 
We  deem  the  law  to  be,  that  when  sureties  are  sought  to  be 
mado  liiible  on  a  bond,  they  must  be  brought  within  the 
letter  of  the  bond;  they  stand  upon  the  words  of  the  bond, 


332  TERRITORY  OF  WYOMING  v.  RITT&R.     [Sup.  Ct. 

Argument  for  Defendants  in  Error. 

and  if  that  does  not  make  them  liable,  nothing  can.  The 
cases  speak  a  uniform  language  on  this  subject :  Myers  et  al. 
v.  Parker,  6  Ohio  St.  501  ;  Evans  v.  Bradley,  17  Wend.  422; 
State  v.  Medary,  17  Ohio,  565  ;  McGrooney  v.  State,  20  Ohio, 
93. 

The  defendants  in  this  case  do  not  claim  that  the  bond 
is  void.  It  is  not  a  good  statutory  bond,  but  is  good  as  a 
common  law  bond,  and  may  be  recovered  on  in  any  case 
where  it  is  alleged  and  proved  that  said  Ritter  has  not 
faithfully  performed  the  duties  required  of  him  by  law  as 
probate  judge.  The  duties  of  Ritter  as  treasurer  are  not 
included  in  the  duties  to  be  performed  by  him  as  probate 
judge,  his  duties  as  treasurer  being  outside  of  and  beyond 
his  duties  as  probate  judge,  and  not  included  in  them,  ac- 
cording to  all  the  authorities  this  bond  gives  no  cause  of 
action  for  a  default  as  treasurer :  Farrar  v.  Brown,  9  Cur- 
tis's  Dec.  386.  In  this  case  the  court  had  no  doubt  but 
that  the  duties  omitted  from  the  terms  of  the  bonds  given 
were  included  in  the  general  terms  incorporated  in  the 
bond,  but  had  so  much  doubt  even  in  that  case  as  to 
whether  there  could  be  a  recovery  when  the  default  was  in 
one  of  the  particulars  omitted  in  the  bond,  that  the  court 
declined  to  pass  its  opinion  as  to  liability  in  such  a  case, 
an  opinion  on  that  point  not  being  necessary  to  a  deter- 
mination of  the  case:  See  case  last  cited,  p.  390.  In  the 
case  last  cited,  the  court  says,  that  but  for  the  statute  which 
was  express  in  requiring  the  condition  of  the  bond  to  ex- 
press that  the  obligor  should  faithfully  disburse  the  public 
moneys  coming  into  his  hands,  etc.,  there  was  no  doubt 
but  that  it  would  be  open  to  proof  that  the  distribution  of 
money  was  one  of  the  known  and  habitual  duties  of  the 
office  of  surveyor,  and  included  in  the  general  words.  But 
in  that  case  the  court  hesitated  so  to  say,  because  the  stat- 
ute  in  express  terms  required  the  bond  to  say  that  he  should 
faithfully  disburse  the  money  received.  But  supposing 
that,  in  a  case  like  the  present,  the  plaintiff  would  not  be 
allowed  to  prove  that  the  receipt  of  the  county  revenues 


March,  1877.]  TERRITORY  OF  WYOMING  v.  RITTER.        333 

Argument  for  Defendants  in  Error. 

and  taxes  is  one  of  the  known  and  habitual  duties  of  the 
office  of  probate  judge,  could  such  proof  be  made.  Is  not  that 
matter  settled  by  law,  and  does  not  the  law  absolutely  settle 
it  by  declaring  that  it  must  be  as  county  treasurer  that  he 
receives  such  moneys  and  disburses  them :  State  of  Ohio  v. 
Findley,  10  Ohio,  51.  But  it  is  claimed  on  behalf  of  the 
plaintiff  that  Hitter  being  ex  officio  treasurer  by  reason  of 
the  fact  that  he  was  probate  judge,  his  duty  as  treasurer 
were  simply  a  portion  of  his  duties  as  probate  judge,  that 
there  was  but  one  office,  and  that  one  was  probate  judge ; 
that  the  offices  were  not  separate  and  distinct  offices,  but 
that  the  duties  of  the  one  were  simply  swallowed  up  and 
absorbed  by  the  other.  When  this  cause  was  argued  be- 
low, it  unfortunately  was  heard  without  the  light  of  any 
authority  expressly  in  point,  and  hence  hud  to  be  deter- 
mined upon  reason  and  the  general  analogies  of  the  law 
rather  than  upon  the  express  adjudication,  especially  as  to 
the  point  just  mentioned.  It  was  supposed  that  no  express 
authority  was  accessible.  Fortunately,  however,  the  ques- 
tion has  been  well  considered  in  numerous  cases  by  one  of 
the  highest  and  most  respectable  courts  of  the  Union,  and  the 
emphatic  declaration  made  that  to  make  a  person  an  <'.r  officio 
officer  by  virtue  of  his  holding  another  office,  does  not  merge 
the  two  into  one,  nor  does  it  thereby  make  the  duties  of 
the  other:  See  People  v.  Edwards,  9  Cal.  286;  People  ex  rel. 
Anderson  v.  Duriclt,  20  Cal.  94  ;  People  v.  Love,  25  Cal.  520  ; 
Lathrop  v.  Brittam,  30  Cal.  680 ;  People  v.  Ro*s,  38  Cal.  76. 
From  an  examination  of  some  of  the  cases  just  cited,  it  will 
be  seen  that  the  court  holds  that  a  recovery  can  !>e  had 
upon  a  sheriff's  bond  for  a  default  as  tax  collector,  but  the 
right  to  recover  is  placed  upon  the  sole  ground  that  the 
state  of  California  by  express  law  had  declared  that  the 
sheriffs  bond  as  such  should  be  liable  for  all  taxes  collected 
by  him  ;  and  in  the  other  cases  not  subject  to  the  provision 
of  this  express  law,  it  was  emphatically  held  that  there 
could  be  no  recovery  upon  the  bond  of  one  office  for  a  de- 
fault in  the  other.  It  is  believed  that  the  authorities  just 


334  TERRITORY  OF  WYOMING  v.  HITTER.    [Sup.  Ob. 

Opinion  of  the  Court— Blair.  J. 

cited  remove  all  doubt  as  to  the  correctness  of  the  ruling 
of  the  court  below  (if  any  such  doubt  ever  existed),  and 
that  this  court  with  the  aid  of  these  decisions,  can  have  no 
hesitation  in  affirming  the  judgment  of  the  court  below. 

By  the  Court,  BLAIR,  J. :  This  is  an  action  brought  on  a 
penal  bond,  executed  by  George  W.  Ritter,  and  Henry  Bath, 
A.  T.  Williams,  Charles  Kuster  and  M.  G.  Toun,  his  sure- 
ties, to  the  territory  of  Wyoming,  as  judge  of  probate,  and 
who,  as  the  petition  of  plaintiff  alleges,  was  also  ex  officio 
county  treasurer  of  Albany  county.  The  petition  proceeds 
to  set  forth  the  duties  of  the  judge  of  probate  as  ex  officio 
county  treasurer,  and  avers  that  it  is  made  his  duty  by  law 
to  receive  all  moneys  belonging  to  the  county  and  territory, 
from  whatever  source  they  may  be  derived,  and  shall  pay 
the  same  out  only  on  the  order  or  warrant  of  the  board  of 
county  commissioners,  as  prescribed  by  law. 

That  he  is  required  to  keep  a  true  and  just  account  of  all 
receipts  and  expenditures,  of  all  moneys  that  shall  come 
into  his  hands ;  to  report  at  each  regular  meeting  of  the 
county  commissioners  the  amount  of  moneys  received  and 
expended  as  treasurer  during  the  intervening  time,  and  to 
safely  keep  all  moneys  that  may  come  into  his  hands  as 
judge  of  probate  and  ex  officio  county  treasurer,  and  to  per- 
form all  the  duties  required  of  him  by  law.  The  petition  fur- 
ther alleges  that  after  Ritter  executed  the  bond  aforesaid,  he 
took  upon  himself  the  office  of  judge  of  probate,  and  as  such 
ex  officio  county  treasurer,  and  assumed  all  the  duties  thereof. 
The  plaintiff  then  assigns  as  a  condition  of  the  breach  of 
said  bond,  that  said  George  W.  Ritter,  judge  of  probate  as 
aforesaid,  and  as  such  ex  officio  county  treasurer  of  Albany 
county,  did  not  faithfully  perform -all  the  duties  required  of 
him  by  law,  but  made  default,  and  wholly  neglected  and  re- 
fused so  to  do. 

That  in  the  year  1875,  and  up  to  the  time  of  bringing  the 
plaintiff's  action,  the  said  Ritter,  as  judge  of  probate  and 
ex  officio  county  treasurer,  received  large  sums  of  money, 


March,  1877.]  TERRITORY  OF  WYOMING  v.  HITTER.        33o 

Opinion  of  the  Court — Blair,  J. 

which  he  grossly  neglected  and  refused,  to  safely  keep,  dis- 
burse and  account  for,  and  that  he  wholly  neglected  and 
refused  to  keep  just  and  true  accounts  of  his  receipts  and 
expenditures  of  all  moneys  coming  into  his  hands,  by  reason 
whereof  the  said  Ritter  had  become  a  defaulter  in  the 
sum  of  fifty-five  thousand  nine  hundred  and  thirty-six  dol- 
lars and  seventy-four  cents,  and  had  absconded  with  the 
same. 

The  petition  concludes  in  the  usual  form,  and  prays  judg- 
ment against  the  defendants  for  ten  thousand  dollars,  the 
penalty  of  the  bond. 

The  sureties  of  Ritter,  by  counsel,  appear  and  demur  to 
the  petition  of  the  plaintiff,  and  assign  two  causes  of  de- 
murrer : 

1.  That    the   plaintiff  has  no   legal   capacity  to   sue  in 
this  action,  in  this,  that  by  law  the  action  should  have  been 
brought  in  the  name  of  the  people. 

2.  That  the  petition  of  the  plaintiff  does  not  state  facts 
sufficient  to  constitute  a  cause  of   action    against   the   de- 
fendant and  in  favor  of  the  plaintiff.     The  demurrer  to  the 
plaintiff's  petition  was    sustained  in  the  court   below,  and 
the  case  came  to  this  court  for  review. 

The  first  cause  of  demurrer  having  been  waived  by  coun- 
sel in  their  argument  before  this  court,  it  will  not  be  consid- 
ered. We  will,  therefore,  consider  the  second  cause  of  de- 
murrer. This  cause  of  demurrer  raises  the  question  (which 
is  the  only  one  in  the  case)  as  to  the  liability  of  the  sure- 
ties of  Ritter  for  the  failure  of  Ritter  to  perform  the  duties 
required  of  him  by  law  as  county  treasurer. 

The  first  inquiry  that  would  seem  to  present  itself  is, 
whether  the  office  of  judge  of  probate  and  county  treasurer 
are  one  and  the  same  office,  or  two  separate  and  distinct 
offices,  and  in  either  case  are  the  sureties  of  Ritter  liable  in 
this  action.  By  a  careful  examination  of  the  act  creating 
the  office  of  a  judge  of  probate,  found  in  the  code  of  1869, 
article  2,  chapter  4,  it  will  be  seen  that  independent  of  the 
first  section,  there  are  but  two,  viz.,  four  and  five,  where  the 


336  TERRITORY  OF  WYOMING  v.  HITTER.     [Sup.  Ct. 

Opinion  of  the  Court — Blair,  J. 

judge  of  probate  is  styled  county  treasurer.  From  the  end 
of  the  fifth  section  to  the  end  of  article  2,  the  person 
who  is  required  to  perform  the  duties  of  treasurer,  is  styled 
either  county  treasurer  or  treasurer.  On  page  358,  section 
49,  of  the  code  of  1869,  it  is  made  the  duty  of  the  county 
treasurer  to  sign  and  deliver  to  the  purchaser  of  any  real 
estate,  sold  for  the  payment  of  taxes,  a  certificate  of  pur- 
chase, etc.,  and  section  54  gives  a  form  of  deed  convey- 
ing to  the  purchaser  of  said  property,  so  sold  as  afore- 
said, which  deed  is  signed  simply,  "  E.  F.,  treasurer."  In 
every  instance,  therefore,  where  the  person  is  referred  to, 
who  is  to  discharge  the  duties  of  county  treasurer,  save  in 
the  two  instances  we  have  mentioned,  he  is  styled  either 
county  treasurer  or  treasurer. 

The  conclusion  would  therefore  seem  almost  inevitable  if 
we  look  to  the  act  alone  creating  the  office  of  judge  of  pro- 
bate, to  ascertain  the  intent  of  the  legislature,  that  it  was 
the  intent,  and  the  legislature  did  create  two  separate  and 
distinct  offices ;  the  duties  of  each  to  be  performed  by  one 
and  the  same  person.  The  correctness  of  this  view  as  to 
the  intent  of  the  legislature  is  not  lessened,  but  on  the  con- 
trary greatly  strengthened  by  the  fact  that  the  duties  of 
the  office  of  judge  of  probate  and  that  of  county  treasurer 
have  no  connection  one  with  the  other;  each  are  clothed 
with  different  and  distinct  powers ;  each  to  perform  differ- 
ent and  distinct  duties ;  the  functions  of  the  former  being 
wholly  judicial,  the  latter  purely  ministerial. 

The  question,  however,  has  been  well  considered  by  one 
of  the  most  respectable  courts  of  the  Union,  and  has,  as 
we  think,  ceased  longer  to  be  debatable.  The  supreme 
court  of  California  has  held,  in  numerous  cases,  that  to 
make  a  person  an  ex  offido  officer  by  virtue  of  his  holding 
another  office,  does  not  merge  the  two  into  one :  People  v. 
Edwards,  9  Cal.  286 ;  People  v.  Love,  25  Id.  520 ;  Lathrop 
v.  Brittain,  30  Id.  680  ;  People  v.  Ross,  38  Id.  76. 

Assuming,  therefore,  that  when  the  legislature  declared 
that  the  judge  of  probate  should  be  ex  officio  county  treas- 


March,  1877.]  TERRITORY  OF  WYOMING  v.  HITTER.        337 

Opinion  of  the  Court — Blair,  J. 

urer  of  his  county,  two  distinct  offices  were  created,  we  are 
brought  to  consider  the  next  question  which  arises  in  this 
case,  viz. :  Are  the  sureties  of  Ritter  liable  in  this  action 
for  the  failure  of  Ritter  to  discharge  all  the  duties  imposed 
upon  him  by  law  as  county  treasurer.  The  laws  of  this 
territory  declare  that  the  judge  of  probate,  who  shall  be 
ex  ojficio  justice  of  the  peace,  and  county  treasurer  of  his 
county,  shall  give  bond  to  the  territory  in  the  penal  sum  of 
ten  thousand  dollars  with  two  or  more  sureties ;  condi- 
tioned for  the  faithful  performance  of  the  duties  required 
of  him  by  law  as  such  judge  of  probate,  ex  officio  justice  of 
the  peace  and  county  treasurer,  and  for  the  faithful  appli- 
cation and  payment  of  all  moneys  and  effects  that  may 
come  into  his  hands  in  execution  of  the  duties  required  of 
him  by  law  as  such  judge  of  probate  and  ex  officio  justice 
of  the  peace  and  treasurer.  The  condition  of  the  bond 
executed  by  Ritter,  and  upon  which  this  action  is  founded, 
is  as  follows,  viz. :  Now,  therefore,  if  the  said  George  W. 
Ritter  shall  well  and  faithfully  perform  all  the  duties  of 
said  office  of  judge  of  probate  according  to  the  laws  of  said 
territory,  then  the  above  obligation  to  be  null  and  void, 
otherwise  to  be  and  remain  in  full  force  and  effect.  Here 
it  will  be  observed  that  the  condition  of  the  bond  upon 
which  this  action  is  being  prosecuted,  would  seem  to  be 
limited  to  and  covers  only  the  duties  of  judge  of  probate. 

If  this  be  so,  the  vital  question  arises,  are  the  sureties  of 
Ritter  liable  in  this  action  for  the  failure  of  Ritter  as 
ex  officio  county  treasurer  to  faithfully  discharge  all  the 
duties  required  of  him  bylaw  as  county  treasurer;  or  in 
other  words,  are  the  legal  liabilities  of  the  sureties  of  Ritter 
the  same  under  the  condition  of  the  bond  sued  on  as  if  it 
contained  the  exact  words  of  the  statute  ?  To  ascertain  the 
extent  and  liabilities  of  sureties  who  execute  bonds  of  this 
character,  we  have  only  to  apply  the  well  settled  rule  of 
law  applicable  in  such  cases,  and  all  difficulty  at  once  dis- 
appears. The  rule  is  simply  this,  that  the  bond  must  speak 
for  itself,  and  the  law  is  that  it  must  so  speak ;  that  the 
09 


338  TERRITORY  OF  WYOMING  v.  HITTER.    [Sup.  Ct. 

Opinion  of  the  Court— Blair,  J. 

liabilities  of  sureties  are  limited  to  the  exact  letter  of  the 
bond.  Sureties  stand  upon  the  words  of  the  bond,  and  if 
the  words  of  the  bond  do  not  make  them  liable,  nothing 
can.  There  is  no  construction,  no  equity  against  sureties. 
If  the  bond  cannot  have  effect  according  to  its  exact  words, 
the  law  does  not  authorize  the  court  to  give  it  effect  in  some 
other  way,  in  order  that  it  may  prevail :  State  of  Ohio  v.  Me- 
dary  et  a/.,  17  Ohio,  565  ;  Myers  et  al.  v.  Parker,  6  Ohio,  501 ; 
Evans  v.  Bradley,  17  Wend.  422. 

Applying  the  above  rule  of  construction  in  endeavoring 
to  ascertain  the  liabilities  of  the  sureties  of  Hitter  under 
ihe  condition  of  the  bond  in  question,  it  would  seem  that 
they  could  be  held  liable  only  for  the  acts  of  Hitter  as 
judge  of  probate  per  se,  and  not  for  his  neglect  or  failure 
to  discharge  the  duties  of  county  treasurer.  But  it  has 
been  argued  by  counsel  for  plaintiff  in  error  with  great  ear- 
nestness, that  when  the  condition  of  a  bond  is  cumulative, 
the  omission  of  one  condition  cannot  invalidate  the  bond 
so  far  as  the  other  operates  to  bind  the  party.  Unquestion- 
ably this  is  true.  But  the  question  is  one  of  much  more 
difficulty  whether  where  the  law  is  expressed  that  the  con- 
dition of  the  bond  shall  be  both  for  the  faithful  perform- 
ance of  all  the  duties  imposed  upon  him  by  law  as  judge  of 
probate,  and  the  faithful  application  and  payment  of  all 
moneys  and  effects  that  may  come  into  his  hands  in  execu- 
tion of  the  duties  required  of  him  by  law  as  such  judge  of 
probate,  and  ex  officio  county  treasurer,  and  the  former 
only  is  inserted,  can  the  latter  be  held  to  be  comprised 
within  the  general  words  of  the  former?  We  do  not  hesi- 
tate to  say  they  cannot :  Farrar  $  Brown  v.  United  States, 
9  Curtis,  386.  * 

We  are  therefore  of  opinion  :  First.  That  where  the  judge 
of  probate  is  made  by  express  statute  ex  officio  county  treas- 
urer of  the  county,  that  two  distinct  offices  are  thereby 
created  by  law;  Second.  That  where  the  condition  of  the 
bond  executed  by  the  judge  of  probate  is  only  for  the  faith- 
ful discharge  of  the  duties  of  judge  of  probate  per  se,  the 


March,  1877.]  WVOMING  NATIONAL  BANK  v.  DAYTON.  339 


Statement  of  Facts. 


sureties  on  said  bond  are  not  liable  for  the  failure  of  the 
judge  of  probate  as  ex  officio  county  treasurer  to  perform  the 
duties  of  county  treasurer  required  by  law. 

For  these  reasons,  we  think  there  is  no  error  in  the  judg- 
ment of  the  court  below. 

Judgment  affirmed. 


WYOMING  NATIONAL  BANK  v.  DAYTON. 

EVIDENCE — NEW  TRIAL. — The  court  will  not  set  aside  a  verdict  and  grant 
a  new  trial  upon  the  sole  ground  that  the  verdict  is  not  sustained  by 
sufficient  evidence,  unless  it  is  manifest  that  the  jury  acted  in  a 
total  disregard  of  the  evidence,  or  acted  against  the  great  weight 
of  the  evidence  to  such  an  extent  as  to  show  that  the  verdict  was 
the  result  of  improper  motives. 

ERROR  to  Second  District  Court  for  Albany  county. 

A  full  statement  of  the  case  is  contained  in  the  opinion 
of  the  court,  except  as  to  the  charge  to  the  jury  in  the  dis- 
trict court,  which  was  as  follows  : 

At  the  request  of  the  defendant,  the  court  charged  the 
jury  that :  .1.  To  entitle  the  plaintiff  to  recover  in  this  action, 
he  must  establish,  by  a  preponderance  of  evidence,  two 
facts :  First,  that  the  Wyoming  National  Bank  was  entitled 
to  the  immediate  possession  of  the  wood  in  question ;  and, 
Second,  that  the  defendant,  Dayton,  was  wrongfully  detain- 
ing the  same  at  the  time  this  action  was  commenced. 
Under  the  pleadings  and  evidence  in  this  case,  the  right 
of  possession  depends  upon  title  and  ownership.  There- 
fore, if  the  jury  find,  from  the  evidence  in  this  case,  that 
the  plaintiff,  the  Wyoming  National  Bank,  was  not  the 
owner  of  the  wood  in  question  at  the  time  the  writ  of  re- 
plevin issued  in  tin's  case,  the  jury  must  find  for  the  defend- 
ant, and  assess  such  damages  as  they  may  think  right  and 
proper.  No  sale  of  personal  property  is  good  prima  facie, 
as  against  bona  fide  attaching  creditors,  or  innocent  pur- 


340         WYOMING  NATIONAL  BANK  v.  DAYTON.  [Sup.  Ct. 


Statement  of  Facts. 


chasers,  without  a  delivery  of  the  goods  and  chattels  sold  ; 
and  if  the  jury  believe,  from  the  evidence  in  this  case, 
a  contract  of  the  wood  in  question  was  made  between  W.  S. 
Bramel  and  the  Wyoming  National  Bank,  but  previous  to 
delivery  of  the  wood  to  the  bank  it  was  attached  by  the 
creditors  of  Bramel,  then  Sheriff  Dayton,  the  defendant  in 
this  suit,  was  not  wrongfully  detaining  the  property  in  ques- 
tion, and  is  entitled  to  recover  damages  in  this  action.  2. 
If  the  jury  believe,  from  the  evidence  in  this  case,  that  there 
was  a  contract  between  W.  S.  Bramel  and  the  Wyoming 
National  Bank  to  transfer  the  proceeds  of  the  wood  only 
to  the  bank,  such  contract  did  not  constitute  a  sale  of  the 
wood,  or  pass  to  the  bank  the  title,  ownership  or  right  of 
possession  thereof.  3.  The  measure  of  damages  in  this 
case,  if  the  jury  find  for  the  defendant,  must  be  the  amounts 
claimed,  and  for  which  the  several  writs  of  attachment  issued 
against  W.  S.  Bramel,  with  legal  interest  thereon,  to  wit: 
twelve  per  cent,  from  the  time  the  writs  issued,  provided 
the  value  of  the  property  in  question  equals  or  exceeds  that 
amount.  The  plaintiff  requested  the  court  to  charge  the 
jury  as  follows,  to  wit :  but  the  court  refused,  to  which  re- 
fusal the  plaintiff  duly  excepted :  First,  there  is  no  compe- 
tent evidence  before  the  jury  that  the  defendant,  Dayton, 
ever  levied  upon  and  took  into  his  possession  the  wood  in 
controversy  in  this  action ;  and  the  court  instructs  you  that 
so  far  as  any  rights  of  the  defendant  are  based  upon  such  de- 
fense, they  are  not  made  out.  Second,  there  is  no  competent 
evidence  before  you  that  the  defendant,  Dayton,  by  virtue 
of  the  writs  of  attachments  described  in  the  defendant's 
answer,  levied  upon  and  took  into  his  possession  the  wood 
in  controversy  in  this  action,  and  you  can  award  him  no 
rights  whatever  by  virtue  of  such  claim.  The  attaching  cred- 
itors of  W.  S.  Bramel  could  obtain,  by  the  service  of  the 
writs  of  attachment  described  in  the  answer  in  this  action,  if 
it  has  been  shown  that  there  were  any  such  creditors,  no  bet- 
ter or  higher  right  than  said  Bramel  had  in  the  property  in 
controversy  in  this  action.  At  the  time  of  the  service  of 


March,  1877.]  WYOMING  NATIONAL  BANK  v.  DAYTON.  341 


Statement  of  Facts. 


said  writs  of  attachment,  if  said  writs  of  attachment  were 
served,  the  rights  which  said  creditors  would  obtain  by  the 
service  of  said  writs  of  attachment,  would  be  at  most  but  a 
lien,  which  in  law  is  postponed  to  all  prior  liens,  whether 
equitable  or  legal,  which  have  been  or  were  asserted  before 
said  property  was  sold  on  execution. 

The  plaintiff  also  requested  the  court  to  give  the  follow- 
ing instructions  to  the  jury,  which  were  given  as  requested, 
and  numbered  by  the  court  from  6  to  13  inclusive :  1.  That 
the  defendant,  Dayton,  claims  a  special  interest  and  owner- 
ship in  the  property  replevied  in  this  action,  by  virtue  of 
levies  upon  the  same,  and  by  virtue  of  certain  writs  of  attacji- 
raent,  as  set  forth  in  the  answer  of  the  defendant.  If  you 
find  that  such  levies  were  made  by  the  defendant,  then  the 
court  instructs  you  that  the  defendant,  Dayton,  by  means  of 
such  levies,  could  get  no  better  or  greater  interest  in  the 
property  so  levied  upon  than  W.  S.  Bramel,  the  defendant 
named  in  such  writs  of  attachment,  had  at  the  time  such  lev- 
ies were  made  ;  2.  If  you  find  from  the  evidence  in  this  case 
that  W.  S.  Bramel,  the  defendant  named  in  the  writs  of 
attachment,  by  virtue  of  which  the  defendant  alleges  he  levied 
upon  and  took  into  possession  the  property  in  controversy 
in  tliis  action,  for  a  valuable  consideration  received  by  him 
from  the  plaintiff,  agreed  with  the  plaintiff  that  the  consid- 
eration to  be  paid  for  said  wood  by  the  Union  Pacific  Rail- 
road Company  to  said  Bramel  (if  any  such  consideration 
was  to  be  paid)  should  be  paid  to  the  plaintiff,  and  that  any 
voucher  for  said  wood  should  be  made  payable  to  said 
plaintiff;  and,  in  addition,  agreed  with  the  plaintiff  to  de- 
liver said  wood  to  said  railroad  company  for  the  benefit  of 
the  plaintiff,  and  if  such  agreement  with  the  plaintiff  was 
made  before  the  defendant  levied  upon  and  took  possession 
of  said  wood,  if  it  was  so  levied  upon  and  taken  into  posses- 
sion, then  the  court  instructs  you  that  any  right  which  the 
defendant  obtained  by  such  alleged  levies,  would  be  subject 
to  the  obligation  of  said  Bramel  in  relation  to  said  wood, 
and  the  agreement  of  said  Bramel  with  said  plaintiff  would 


342         WYOMING  NATIO'NAL  BANK  v.  DAYTON.  [Sup.  Ct. 


Statement  of  Facts. 


have  to  be  performed  and  carried  out  before  the  defendant 
could  obtain  any  right  or  interest  in  said  wood  by  virtue  of 
levies  made  under  the  writs  of  attachment  described  in  de- 
fendant's answer;  3.  So  far  as  the  defendant  in  this  action 
makes  any  claim  to  the  wood  in  controversy  in  this  action, 
by  reason  of  having  levied  upon  and  taken  possession  of  the 
same,  by  reason  of  certain  writs  of  attachment,  that  defense 
on  the  part  of  the  defendant  is  an  affirmative  one,  and  the 
defendant,  before  he  can  recover  in  this  action  by  reason 
of  such  defense,  must  prove  the  same  by  a  preponderance 
of  evidence,  and  if  it  is  not  so  proved  by  a  preponderance 
of  evidence,  then  you  cannot  find  for  the  defendant  upon 
that  defense ;  4.  In  case  you  find  for  the  plaintiff  in  this 
action,  you  shall  assess  adequate  damages  to  the  plaintiff 
for  the  illegal  detention  of  the  property;  such  damages 
would  be  the  interest  on  the  value  of  the  property  at  twelve 
per  cent,  per  annum  during  the  time  the  wood  was  so  de- 
tained by  the  defendant,  if  it  was  so  detained;  5.  If  the 
plaintiff  in  this  action  purchased  the  wood  in  controversy  in 
this  action  from  W.  S.  Bramel,  before  the  defendant  levied 
upon  the  same,  if  he  did  so  levy  and  if  said  wood  was  deliv- 
ered at  a  place  agreed  on  between  said  Bramel  and  the 
plaintiff  before  any  such  levy  was  made,  then  the  defendant 
acquired  no  right  whatever  to  said  wood  by  such  levy,  and 
you  should,  in  that  case  find  for  the  plaintiff ;  6.  The  court 
instructs  you  that  the  defendant's  defense,  that  he  was  en- 
titled to  the  wood  in  question  by  reason  of  levies  made  by 
virtue  of  certain  writs  of  attachment,  is  not  a  good  defense 
in  this  action,  unless  the  evidence  in  the  case  shows  you 
that  such  levies  were  made  upon  the  identical  and  same 
wood  replevied  in  this  action,  and  you  cannot  take  it  for 
granted  that  the  wood  so  replevied  is  the  same  wood  that 
was  levied  on  by  the  defendant,  but  such  fact  must  have 
been  proved  to  you  by  the  evidence  in  this  case  ;  7.  The 
court  instructs  you  that  the  defendant,  Dayton,  on  levying 
upon  the  property  in  controversy,  if  you  find  he  did  so  levy, 
with  the  writs  of  attachment  described  in  the  answer  in  this 


March,  1877.}  WYOMING  NATIONAL  BANK  v.  DAYTON.  #43 

Argument  for  Plaintiff  in  Error. 


action,  acquired  only  such  interest  in  said  property  as  W. 
S.  Bramel  then  had  in  the  property,  and  such  levies  by  the 
defendant  would  be  subject  to  any  valid  contracts  made  by 
said  Bramel  in  respect  to  said  property  at  the  time  such 
levies  were  made;  8.  If  the  jury  find  for  the  plaintiff  in  this 
action,  the  form  of  the  verdict  should  be  as  follows  : 

"  Wyoming  National  Bank,  plaintiff  v.  Thos.  J.  Dayton, 
defendant.  We,  the  jury,  find  for  the  plaintiff,  and  assess 
its  damages  at  $ .  ,  foreman." 

The  court  also  instructed  the  jury  in  writing,  on  its  own 
motion,  as  follows :  Gentlemen  of  the  jury — The  petition  in 
this  cause  sets  up  fully  the  cause  of  action,  or  the  claim  of 
the  plaintiff,  and  the  answer  of  the  defendant  sets  up  the 
defense  to  the  plaintiff's  action  on  the  part  of  the  defendant. 
The  facts  in  the  case  are  few,  and  by  applying  the  law  to 
them,  given  you  by  the  court,  you  will  have,  I  think,  but 
little  difficulty  at  arriving  at  a  just  and  proper  verdict. 
Counsel  have  requested  the  court  to  give  you  certain  in- 
structions. I  have  marked  them  "instructions  given,"  and 
numbered  them  from  one  to  thirteen,  inclusive,  and  made 
them  a  part  of  this  charge,  and  you  will  consider  them  as 
such.  You  are  the  sole  judges  of  the  weight  of  evidence 
and  the  credibility  of  witnesses.  The  instructions  referred 
to  above  contain  the  law  of  the  case,  and  I  have  not  deemed 
it  necessary  to  add  anything  more. 

W.  W.  Corlett,  for  plaintiff  in  error. 

This  was  an  action  brought  by  the  plaintiff  in  error 
against  the  defendant  in  error,  in  the  district  court  of  Al- 
bany county,  to  recover  the  possession  of  five  hundred  cords 
of  fire-wood,  alleged  to  belong  to  the  plaintiff,  and  to  be 
wrongfully  detained  by  the  defendant.  The  defendant 
answered:  1.  By  a  general  denial;  and,  2.  That  he  was 
sheriff  of  Albany  county,  and  as  such  sheriff,  by  divers 
writs  of  attachments  duly  issued  out  of  the  district  court  of 


WYOMING  NATIONAL  BANK  v.  DAYTON.  [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

said  Albany  county,  against  one  W.  S.  Bramel,  he  levied 
upon  and  took  possession  of  said  wood,  which  lie  alleges 
was  the  property  of  said  Bramel  at  the  time  of  said  levy, 
and  holds  the  said  wood  by  virtue  of  said  facts  so  alleged. 

The  property  in  controversy  in  the  action  was  taken  and 
delivered  to  the  plaintiff  in  the  action,  and  the  venue  of  the 
action  was  changed  to  Carbon  county,  where,  at  the  Sep- 
tember, A.  D.  1876,  term  of  the  district  court  in  that  county, 
the  cause  was  tried,  and  a  verdict  rendered  for  the  defend- 
ant for  two  thousand  .five  hundred  dollars.  The  plaintiff 
then  filed  a  motion  for  a  new  trial  in  the  case,  which  was 
overruled,  and  judgment  entered  on  the  verdict.  This  pro- 
ceeding in  error  is  prosecuted  for  the  purpose  of  reversing 
said  judgment,  because  of  errors  of  various  kinds  occurring 
during  the  trial  of  the  cause  and  excepted  to  by  the  plain- 
tiff, which  errors  will  be  distinctly  pointed  out  as  they  are 
hereafter  considered. 

The  first  error  alleged  is,  that  the  court  below  erred  in 
refusing  to  set  aside  the  verdict  of  the  jury,  because  the 
said  verdict  is  not  sustained  by  sufficient  evidence  and  is 
contrary  to  law.  This  is  a  question  of  fact,  so  far  as  any 
argument  upon  it  is  concerned,  and  will,  therefore,  be 
argued  orally  at  the  bar  upon  an  examination  of  all  the  evi- 
dence in  the  case,  in  connection  with  a  reference  to  such 
authorities  as  are  believed  to  lay  down  the  rule  as  to  what 
the  action  of  this  court  should  be  in  passing  upon  said  alleged 
error. 

The  next  error  complained  of  is,  that  the  court  erred  in 
giving  to  the  jury  instruction  one  requested  by  the  defendant : 
See  Farrell  v.  Humphrey,  12  Ohio,  112;  Oaks  v.  Wyatt,  10 
Id.  344 ;  Williams  v.  West,  2  Ohio  State,  82 ;  KuJdand  v. 
Sedgwiek,  17  Cal.  123.  These  authorities  show  conclusively 
that  the  allegation  of  ownership  is  immaterial  and  surplus- 
age, and  that  the  right  of  immediate  possession  is  the  ques- 
tion to  be  tried.  Again,  the  time  which  was  material  was 
the  date  of  the  execution  of  the  writ. 

The  fifth  error  complained  of  is,  that  the   court  below 


March,  1877.]  WYOMING  NATIONAL  BANK  v.  DAYTON.  345 

Argument  for  Plaintiff  in  Error. 

erred  in  giving  to  the  jury  instruction  two,  requested  by  the 
defendant.  On  this  question  see  Hobben  v.  Bidwell,  16 
Ohio,  510;  2  Kent's  Com.  393;  3  Johns.  170;  1  Parsons  on 
Contracts,  title  "Sale,"  to  show  that  delivery  is  not  neces- 
sary to  constitute  a  sale.  Retention  of  possession  is  only 
prima facie  evidence  of  fraud:  Hambice  v.  Vanhuter,  9  Wis. 
453.  Purchaser  takes  only  the  interest  of  the  execution  or 
attachment  defendant:  Rorer  on  Judicial  Sales,  sec.  1051 
et  seq. ;  Haldman  v.  R.  P.  Co.,  2  Handy,  101 ;  Seney's  Code, 
sec.  225,  note  ;  Herman  on  Execution,  418,  485,  499,  500,  and 
c.  18  and  cases  there  cited ;  Drake  on  Attachment,  sec.  254. 

The  sixth  error  complained  of,  is  that  the  court  below 
erred  in  giving  to  the  jury  instruction  three,  requested  by 
the  defendant.  On  this  proposition  see  the  authorities 
cited  under  last  head.  The  instruction  completely  ignores 
the  equitable  rights  of  the  plaintiff  in  error  and  the  distinc- 
tion between  a  complete  sale  to  the  purchaser  without  notice, 
and  the  lien  of  a  creditor  obtained  by  attachment  with 
notice. 

The  next  material  error,  is  that  the  court  below  on  the 
trial  of  this  cause  erred  in  allowing  the  defendant  to  give 
in  evidence  to  the  jury  transcripts  of  certain  judicial  pro- 
ceedings and  records,  the  same  not  being  properly  author- 
ized, and  especially  in  permitting  the  returns  on  certain  writs 
of  attachment  to  go  to  the  jury,  the  same  not  being  in  any 
way  certified  or  authenticated. 

This  objection  goes  to  the  failure  of  the  clerks'  certificates 
to  show  that  the  returns  on  the  writs  Avere  true  copies  of  the 
original :  Phillips  v.  Elwell,  14  Ohio  St.  240.  On  the  ques- 
tion of  practice  as  to  the  failure  of  the  plaintiff  to  except  to 
the  order  of  the  court  overruling  the  motion  for  a  new  trial : 
See  ffause  v.  Elliott,  G  Ohio  St.  p.  497,  followed  in  12  Ohio 
St.  428. 

In  the  question  of  retention  of  possession  by  vendor  after 
a  sale,  it  is  held  even  by  the  old  English  cases,  that  if  the 
subsequent  possession  by  the  vendor  appear  merely  as  the 
condition  of  an  executory  contract,  then  such  retention  of 


346         WYOMING  NATIONAL  BANK  v.  DAYTON.  [Sup.  Ct. 

Argument  for  Defendant  in  Error. 

possession  is  no  evidence  of  fraud.  Now,  on  the  theory 
of  the  defendant  in  this  case,  the  case  itself  comes  exactly 
within  this  rule :  -See  Story  on  Sales,  sec.  518 ;  Edwards  v. 
ffarben,  2  S.  R.  587 ;  Hamilton  v.  Russell,  1  Cranch,  309, 
sec.  1 ;  Curtis  Dec.  415  ;  Story  on  Sales,  sees.  521,  522,  526, 
526  a,  529. 

E.  P.  Johnson  and  M.  C.  Brown,  for  the  defendant  in 
error. 

Dayton,  as  sheriff  of  Albany  county,  levied  upon  certain 
wood  by  virtue  of  several  writs  of  attachment  running 
against  one  W.  S.  Bramel.  The  wood  was  seized  as  Bra- 
mel's  property,  and  replevied  from  the  sheriff's  possession 
by  the  plaintiff  in  error,  against  whom  judgment  was  ren- 
dered in  the  court  below. 

The  first,  second  and  third  errors  involve  questions  of 
fact  and  cannot  be  seriously  argued.  If  so  they  avail  noth- 
ing, for  the  first  will  not  ordinarily  be  noticed  by  an  appel- 
late court.  The  second  and  third  could  be  cured  by 
remittitur  if  found  to  exist,  but  a  computation  shows  the 
verdict  to  be  correct. 

The  fourth  error  complained  of  has  no  foundation.  The 
instruction  number  one  correctly  states  the  law,  and  the 
right  to  the  possession  by  plaintiff  having  no  foundation 
other  than  ownership,  it  was  proper  to  direct  the  judge's 
attention  to  that  fact.  The  ownership  was  material  in  this 
case,  as  it  constituted  the  basis  of  plaintiff's  claim  to  the 
right  of  possession. 

The  next  error  complained  of  is  the  giving  of  instruction 
number  two,  requested  by  defendant.  The  instruction 
might,  perhaps,  be  said  to  be  unnecessary  and  irrelevant, 
because,  while  title  was  claimed  by  plaintiff,  the  testimony 
of  Ivinson  and  Swain  together  show  there  never  was  a  sale 
of  the  wood.  Nor  was  there  even  an  attempt  to  do  more 
than  take  an  assignment  of  the  proceeds  when  the  wood 
should  be  delivered  by  Bramel  to  the  railroad  company. 


March,  1877.]  WYOMING  NATIONAL  BANK  v.  DAYTON.  347 

Argument  for  Defendant  in  Error. 

So  the  instruction  could  do  harm,  and  nothing  is  better 
settled  than  the  principle  that  error  which  does  no  injury 
to  the  litigants  will  not  be  allowed  to  disturb  a  judgment : 
3  Graham  &  Wat.  862-873 ;  2  Nash,  1046 ;  Powell  on  App. 
Pr.  157-67,  189  ;  Hill,  on  New  Trials,  32-52.  The  instruc- 
tion is  not  erroneous,  however,  in  itself.  The  claim  in  the 
pleadings,  however  badly  supported  by  testimony,  was  that 
the  bank  had  absolutely  purchased  the  wood.  If  so,  there 
should  have  been  a  delivery,  to  make  a  complete  sale  as  to 
third  parties:  1  Pars,  on  Con.  519,  527,  529;  Story  on  Sales, 
sec.  296.  But  retention  of  possession  by  the  vendor  of  per- 
sonal property  was,  at  common  law,  or  rather  statutes  of 
Elizabeth,  a  fraud  in  law,  and  avoided  the  sale.  While  the 
doctrine  is  modified  in  many  of  the  United  States,  it  is  ad- 
hered to  in  many,  and  especially  by  the  supreme  court  of 
the  United  States  and  the  federal  judiciary :  1  Smith's  Lead- 
ing Cases,  523  ;  1  Pars,  on  Con.  429;  2  Kent,  12  ed.  515- 
532  ;  1  Cranch,  309-316  ;  4  Mason  C.  C.  312  ;  Story  on  Sales, 
sec.  518  and  on. 

Such  being  the  rule  adhered  to  by  the  supreme  court  of 
the  United  States,  it  is  binding  upon  the  courts  of  this  ter- 
ritory, as  it  is  the  appellate  court,  whose  decisions  are  not 
only  entitled  to  respect  but  have  the  weight  of  authority. 
It  will  be  seen  that  the  instruction  does  not  declare  the  law 
as  between  the  parties  to  the  contract,  but  between  them 
and  the  creditors  of  the  vendor,  and  the  law  is  correctly 
stated.  Under  the  testimony,  the  court  would,  at  any  stage 
of  the  trial,  have  had  the  right  to  assume,  as  an  undisputed 
fact,  that  the  sheriff  detained  the  wood  by  virtue  of  attach- 
ment writs  described  in  the  answer.  A  party  has  the  right 
to  require  the  best  proof,  but  secondary  proof  admitted 
without  objection  is  sufficient :  Powell  on  App.  Pr.  178,  182  ; 
Phill.  on  Ev.  470;  2  Id.  433.  But  the  writs  were  returned 
with  the  sheriff's  return  thereunder,  and  when  filed,  the 
returns  become  an  inseparable  portion  of  .the  writ  and  of 
the  records,  so  that  certification  of  the  writ  included  the 
return. 


348          WYOMING  NATIONAL  BANK  v.  DAYTON.  [Sup.  Ct. 

Opinion  of  the  Court — Blair,  J. 

But  the  record  shows  that  in  this  case  all  exceptions  were 
waived.  The  rule  of  this  court  requires  all  points  that  are 
to  be  relied  on  in  this  court,  to  be  first  presented  to  the 
court  below  in  a  motion  for  new  trial.  That  was  done  in 
this  case,  and  no  objection  or  exception  was  made  to  the 
order  of  the  court  overruling  the  motion  for  new  trial, 
whereby  every  error  that  had  been  complained  of  was 
waived.  And  this  really  comes  up  here  with  a  record  show- 
ing such  waiver. 

By  the  Court,  BLAIR,  J. :  This  action  was  brought  in  the 
district  court  of  Albany  county,  and  the  venue  changed  to 
the  county  of  Carbon  ;  a  trial  was  had,  verdict  rendered 
and  judgment  entered  thereon,  at  the  September  term,  A.  D. 
1876. 

It  is  brought  here  for  review  by  the  plaintiff  below,  who 
is  now  the  plaintiff  in  error  in  this  court.  It  appears,  by 
the  petition  in  this  case,  that  the  plaintiff  in  error  instituted 
an  action  in  replevin  in  the  district  court  of  Albany  county, 
against  the  defendant  in  error,  to  recover  the  possession  of 
five  hundred  cords  of  wood.  The  petition  alleges  that  the 
plaintiff  was  the  owner  of  said  wood,  and  was  entitled  to 
the  immediate  possession  thereof;  that  the  defendant, 
wrongfully  and  unjustly,  detained  in  his  possession  the  said 
wood,  and  had  so  detained  the  said  wood  from  the  plaintiff 
for  the  period  of  thirty  days,  to  the  damage  of  the  plaintiff 
in  the  sum  of  five  hundred  dollars. 

The  answer  of  the  defendant  to  the  plaintiff's  petition : 
1.  Sets  up  a  general  denial  to  all  matters  in  said  petition 
contained  ;  2.  Denies  that  the  plaintiff  was  the  owner  of  the 
wood  in  question,  or  was  entitled  to  the  immediate  posses- 
sion thereof,  and  further  denies  that  the  defendant  ever 
took  or  held  the  wood  in  question,  or  ever  unlawfully  de- 
tained the  possession  of  the  said  wood  from  the  plaintiff ; 
3.  The  defendant  alleges  that,  as  the  lawful  sheriff  of-  Al- 
bany county,  and  by  virtue  of  certain  writs  of  attachment, 
issued  out  of  the  district  court  of  said  county,  directed  to 


March,  1877.]  WYOMING  NATIONAL  BANK  v.  DAYTON.  349 

Opinion  of  the  Court — Blair,  J. 

him,  the  sheriff  of  said  county,  against  one  W.  S.  Bramel, 
he  levied  upon  said  wood  as  the  property  of  said  Bramel, 
and  took  the  same  into  his  possession ;  that  at  the  time  of 
the  said  levy,  the  said  Bramel  was  the  owner  of  and  in  the 
possession  of  said  wood,  and  by  reason  of  said  levy,  he, 
the  defendant,  as  sheriff,  had  a  special  property  in  said 
wood,  to  the  amount  of  twenty-three  hundred  dollars,  for 
which  he  prayed  judgment.  The  wood  in  question,  levied 
on  by  virtue  of  the  writs  of  attachment,  was  delivered  to  the 
plaintiff. 

There  are  two  questions  which  are  necessarily  raised  by 
the  pleadings  in  this  case : 

1.  Was  the  plaintiff  in  error   the  owner  of  the  wood  in 
question,  and  entitled  to  the  immediate  possession  of  the 
same  at  the  time  this  suit  was  instituted  ? 

2.  If  so,  did  the  defendant  in  error  wrongfully  detain  the 
property  in  controversy  from  the  plaintiff? 

Before  the  plaintiff  could  recover,  it  is  manifest  that  he 
must  substantiate  the  first  proposition  by  a  preponderance 
of  evidence.  The  jury  having  found  for  the  defendant  in 
error  and  assessed  his  damages  at  two  thousand  five  hun- 
dred dollars,  the  plaintiff  brings  this  case  here  upon  a 
writ  of  error  in  order  that  certain  questions  of  law  aris- 
ing in  the  trial  of  the  cause  may  be  reviewed  by  this 
court.  The  first,  second  and  third  errors  assigned  by  the 
plaintiff  in  error  involve  questions  of  fact,  the  determina- 
tion of  which  were  the  special  province  of  the  jury.  The 
court  will  not  set  aside  a  verdict  and  grant  a  new  trial 
upon  the  sole  ground  that  the  verdict  is  not  sustained  by 
sufficient  evidence,  unless  it  is  manifest  that  the  jury  acted 
in  a  total  disregard  of  the  evidence,  or  acted  against  the 
great  weight  of  the  evidence  to  such  an  extent  as  to  show 
that  the  verdict  was  the  result  of  improper  motives :  Min- 
turn.  v.  Burr,  20  Cal.  48. 

After  a  careful  examination  of  the  evidence  as  contained 
in  the  record,  we  are  not  only  satisfied  that  the  verdict  is 
warranted  by  the  evidence,  but  we  find  it  difficult  to  see  how 


350        .  WYOMING  NATIONAL  BANK  v.  DAYTON.  [Sup.  Ct. 

Opinion  of  the  Court — Blair,  J. 

the  jury  could  have  arrived  at  any  other  conclusion  than 
they  did.  As  to  the  amount  of  damages  assessed  by  the 
jury,  we  are  of  opinion  that  the  measure  of  damages  should 
have  been  for  the  aggregate  amounts  claimed  in  the  attach- 
ment write  under  which  the  sheriff  seized  the  wood  in  ques- 
tion, and  a  remittitur  is  therefore  directed  to  be  filed  by  the 
defendant  in  the  court  below  covering  the  interest  calculated 
by  the  jury  upon  said  amounts,  which  amount  we  find  to  be 
five  hundred  and  seventy-three  dollars  and  twenty  cents. 

As  to  the  fourth  error  assigned  by  the  plaintiff  in  error, 
we  are  of  opinion  that  the  plaintiff  having  put  the  title  of 
said  wood  in  issue  by  the  pleadings,  claiming  his  right  of 
possession  solely  on  that  ground  in  his  petition  and  by  his 
testimony,  the  instruction  complained  of  correctly  states  the 
law.  As  to  the  other  parts  of  said  instruction  the  record 
shows  that  the  writs  were  issued  and  served  on  the  same 
day,  and  that  no  rights  of  third  parties  intervene  between 
the  issuing  and  the  service  of  the  writs.  The  error,  if  it  be 
error,  is  therefore  harmless. 

The  fifth  error  assigned  is  as  to  the  giving  of  the  second  in- 
struction asked  for  by  the  defendant.  It  appears  from  the 
evidence  in  the  case  that  no  question  is  involved  or  arises  be- 
tween the  vendor  or  the  vendee,  but  solely  between  the  vendee 
and  the  attaching  creditors  of  the  vendor.  We  think  the 
instruction  is  applicable  to  the  pleadings  and  evidence  in 
the  case.  The  plaintiff  rests  his  rights  to  recover  possession 
of  the  wood  in  question  on  his  absolute  ownership,  derived 
or  acquired  by  an  unconditional  purchase  from  W.  S.  Bramel. 

Tt  is  not  claimed  that  there  was  a  delivery  of  the  wood, 
and  the  record  shows  that  the  full  and  absolute  control  and 
possession  of  the  same  was  publicly  and  privately  retained 
by  Bramel  after  the  alleged  unconditional  sale.  And  while 
it  is  held  in  many  states  that  the  retention  of  possession  of 
personal  property  by  the  vendor  after  an  unconditional  sale 
is  only  prima  facie  a  fraud,  the  federal  courts  hold  it  to  be  a 
fraud  in  law,  and  as  against  creditors  and  bona  fide  pur- 


March,  1877.]         NOETH  v.  MCDONALD.  351 


Points  decided. 


chasers  renders  the  sale  void :  1  Smith's  Leading  Cases,  523 ; 
1  Cranch,  309,  316;  4  Mason's  C.  C.  312;  2  Kent,  515-532. 

The  supreme  court  of  the  United  States  being  the  appel- 
late court  to  which  this  case  must  go  if  appealed,  we  feel 
bound  by  its  decision,  and  shall  so  hold  in  this  case.  In 
that  view  there  is  no  error  in  the  instruction.  But  there  is 
another  view  of  the  case  which  we  take  that,  without  refer- 
ence to  the  merits  of  the  instructions  complained  of,  renders 
the  question  raised  by  it  immaterial  and  the  instruction  it- 
self harmless,  even  if  erroneous.  The  jury  unquestionably 
found  from  the  evidence  that  there  was  no  sale  of  the  wood 
by  which  title  or  right  of  immediate  possession  to  it  passed 
to  the  bank.  We  think  the  preponderance  clearly  shows 
that  there  was  nothing  more  than  an  arrangement  made  by 
which,  when  Bramel  had  delivered  five  hundred  cords  of 
wood  to  the  railroad  company  the  proceeds  were  to  go  to 
the  bank.  We  find  no  error  in  giving  the  instruction  num- 
ber three  complained  of  as  the  sixth  error.  The  remittitur 
ordered  disposes  of  the  objection  made  to  the  fourth  in- 
struction asked  and  given  at  the  request  of  the  defendant. 
We  find  nothing  in  the  record  making  it  necessary  to  exam- 
ine the  other  errors  complained  of,  as  some,  we  think,  are 
inapplicable,  and  others  were  not  seriously  insisted  on  in  the 
argument  of  the  cause ;  for  this  reason  they  are  overruled. 

Judgment  affirmed. 


NORTH  ET  AL.,  ASSIGNEE,  ETC.,  v.  McDONALD  ET  AL. 

BANKRUPTCY.— Assignees  of  a  bankrupt  before  they  can  recover  of  third 
parties  for  an  alleged  fraudulent  purchase  of  property  of  the  bank- 
rupt must,  upon  the  trial,  prove  all  the  facts  necessary  to  bring  such 
transaction  within  the  provisions  of  the  bankrupt  act  of  the  United 
States.  This  refers  to  the  question  of  time  as  well  as  to  all  others. 

NONSUIT. — Where  assignees  of  a  bankrupt  brought  suit  to  recover  the 
value  of  certain  property  purchased  of  him  on  an  alleged  fraudulent 
sale,  and  on  the  trial  failed  to  prove  that  such  sale  and  the  filing 
of  the  petition  in  bankruptcy  occurred  within  two  mouths'  time  of 


352  NORTH  v.  Me  DONALD.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

each  other,  according  to  the  provisions  of  section  5128  of  the  bank- 
rupt act,  but  on  the  contrary  did  prove  that  two  months  and  twenty- 
three  days  had  elapsed  between  the  occurrence  of  the  alleged  fraudu- 
lent purchase  and  the  riling  of  the  petition  in  bankruptcy:  Held, 
that  it  was  not  only  right  for,  but  the  duty  of,  the  district  court, 
on  motion  of  defendants,  to  grant  a  nonsuit. 

ERROR  to  the  Third  District  Court  for  Laramie  County. 

A  sufficient  statement  of  the  case  is  contained  in  the 
opinion  of  the  court. 

W.  W.  Corlett,  for  plaintiffs  in  error,  contended  that  the 
nonsuit  was  improvidently  and  irregularly  granted,  for  the 
reasons  :  That  the  action  was  brought  under  the  proper  sec- 
tion of  the  act,  and  one  giving  more  than  two  months  in 
which  to  commence  proceedings ;  that  there  was  evidence  of 
fraud  for  the  jury  to  pass  upon,  and  cited :  Bump  on  Bank- 
ruptcy ;  1  Dillon,  24 ;  14  Wallace,  244  ;  21  Id.  360 ;  7  Blatch- 
ford,  284;  8  Id.  488;  11  Ohio,  453;  4  Ohio  St.  628. 

E.  P.  Johnson,  for  defendants  in  error,  urged  that  under 
the  state  of  facts,  claimed  by  plaintiffs,  they  cannot  recover, 
unless  proceedings  in  bankruptcy  were  commenced  within 
two  months  after  the  alleged  fraudulent  sale ;  and  further, 
that  there  was  no  evidence  of  fraud  whatever,  before  the 
jury,  and  cited  several  sections  from  Bump  on  Bankruptcy. 

By  the  Court,  THOMAS,  J. :  An  action  was  brought  herein 
in  the  district  court  of  Uinta  county,  by  Orlando  North  and 
L.  Newman,  assignees  in  bankruptcy,  etc.,  of  Russell  Thorp 
against  Win.  McDonald  and  Harvey  Booth,  to  recover  the 
value  of  a  large  amount  of  horses,  cattle,  mules,  and  other 
personal  property,  alleged  to  have  been  sold  by  said  bank- 
rupt to  the  defendants,  on  the  twenty-fifth  day  of  Septem- 
ber, A.  D.  1874,  in  contravention  of  the  provisions  of  the 
bankrupt  law  of  the  United  States.  The  venue  in  said 
action  was  subsequently  changed  to  Sweetwater  county. 
The  petition  in  bankruptcy,  upon  which  said  Thorp  was  ad- 


March,  1877.]         NoKTtf  v. 


Opitiloti  Of  'thtf  CoitVt—  Tliottias,  J. 


judicated  a  bankrupt,  was  filed  in  the  third  district  court,  on 
the  seventeenth  day  of  December,  1874.  The  personal  prop- 
erty herein  referred  to'  was  sold  to  the  defendants  in  the 
district  court,  for  the  sttm  of  three  thousand  and  five  dollars, 
while,  it  was  alleged  in  said  plaintiff's  petition,  that  said 
property  so  as  aforesaid  transferred  wa's  worth  the  sum  of 
six  thousand  four  hundred  and  fifty  dollars. 

The  case  ca;me  On  fcfr  trial  at  the  October,  Sweetwater, 
term,  1875,  before  Chief  Justice  Fisher  and  a  jury.  After 
the  testimony  of  the  plaintiffs  had  closed,  the  defendants 
moved  for  a  nonsuit,  upon  the  ground  that  said  testimony 
failed  to  show  the  existence  of  a  cause  of  action  in  favor  of 
the  plaintiffs  and  against  the  defendants,  which  motion 
was,  after  the  arguments  of  counsel,  sustained  by  the  court. 
A  motion  was  subsequently  made,  by  counsel  for  the 
plaintiffs,  to  set  aside  such  nonsuit,  which  second-named 
motion  was  overruled,  and  judgment  ordered  for  the  de- 
fendants against  the  plaintiffs  for  costs.  The  only  error 
now  complained  of  in  the  court  below,  and  to  be  passed 
upon  by  this  court,  is  the  granting  of  said  motion  for  non- 
suit. 

It  is  apparent,  from  the  reading  of  the  petition  of  the 
plaintiffs  in  the  district  court,  that  it  was  drawn  solely  with 
reference  to  section  5129,  of  the  revised  statutes  of  the 
United"  States,  and  to  the  provisions  therein  contained,  while 
the  petition,  together  with  the  evidence  adduced  upon  the 
trial,  viz.  :  That  the  defendants  herein,  and  the  purchasers 
of  the  property  mentioned,  were  creditors  of  the  bankrupt 
Thorpe,  brought  the  case  before  the  district  court,  under 
the  provisions  of  section  5128.  The  entire  statutes  con- 
cerning bankruptcy  should  certainly  be  considered  together, 
so  far  as  they  may  affect  the  questions  involved  in  this  case, 
and  we  cannot  see  that  the  provisions  of  section  5046  are 
at  all  in,  conflict  with  those  of  section  5129.  One  we  find, 
with  those  sections  of  the  law  giving  instructions  and  direc- 
tions to  assignees  in  bankruptcy  ;  the  other  with  those  sec- 
tions which  define  what  properly  should  be  seized  for  the 
23 


V.  M€l)GNAW>.  [Sup.  Ct. 


Opinion  of  the  Court--Thonaas,  J. 


benefit  of  creditors  ;  or,  in  other  words,  section  :5046  refers 
to  the  duties  of  assignees,  while  sections  5128  and  5129 
describe  more  fully  than  in  the  general  instructions  just 
what-  contracts  for  the  disposition  of  property  were  void, 
and  what  property  was  subject  to  the  action  of  the  assignee. 
We  are  of  the  opinion  that  section  5046  makes  no  new 
or  different  provisions  from  sections  5128  and  5129,  but 
may  be  regarded  as  referring  to  them  and  to  the  provisions 
in  those  sections  contained. 

.  Under  this  view  of  the  case  as  the  proceedings  before  the 
district  court  came  entirely  within  the  provisions  of  section 
5123,  that  court  committed  no  error  in  sustaining  the 
inotion  ,  for  nonsuit,  for  there  was  no  evidence  whatever 
adduced  upon  the  trial  to  show  that  less  than  two  months. 
had  elapsed  between  the  alleged  fraudulent  sale  and  the 
filing  of  petition  in  bankruptcy  ;  but,  on  the  contrary,  the 
testimony  of  the  plaintiffs  was  conclusive  on  the  point  that 
more  than  two  months  had  transpired  between  the  occur- 
rence of  those  two  events.  It  is  conceded  that  it  is  not 
merely  discretionary  with,  but  that  it  is  the  duty  of  a  court 
to  grant  a  nonsuit  on  motion  of  defendants  where  the  plain- 
tiff has  failed  to  adduce  any  evidence  to  establish  any 
allegation  material  to  the  issue.  Upon  this  question  of 
time  therefore,  it  is  clear  that  the  court  below,  not  only 
did  not  commit  an  error  but  acted  strictly  in  accordance 
with  the  line  of  its  duty  in  sustaining  the  motion  for  a 
nonsuit. 

Even  had  this  case  not  fallen  under  the  provisions  of  sec- 
tion 5128,  it  is  very  questionable  whether  there  was  any 
evidence  before  the  jury  tending  to  prove  a  fraudulent 
transfer  of  property.  The  property  was  sold  at  a  low  price 
but  not  at  as  low  a  one  as  would  be  inferred  from  reading 
t)ie  plaintiff's  petition,  and  there  is  no  question  but  what 
the  price  named  was  actually  paid  by  the  defendant  to  said 
Thorpe.  The  transfer  of  a  large  amount  of  property  in  this 
country)  -where  it  is  very  difficult  to  obtain  money  in  large 
quantities)  at  a  single  sale  for  cash  by  a  person  in  em- 


March,  1877.]  BYRNE  v.  MYERS.  355 

Opinion  of  the  Court — Fisher,  C.  J. 

barrassed  financial  circumstances,  even  at  a  low  price,  is 
not  sufficient  in  itself  to  raise  the  presumption  of  fraud. 
But  the  first  and  principal  question  raised  and  discussed  on 
the  argument  of  the  cause  in  this  court  is  sufficient  to  decide 
it  upon,  and  a  further  examination  of  the  evidence  is  un- 
necessary. 

The  decision  of  the  district  court  is  affirmed. 


BYRNE  v.  MYERS. 

EVIDENCE,  PREPONDERANCE  OF. — It  is  the  province  of  a  jury,  and  of 
the  court  in  the  absence  of  a  jury,  to  determine  upon  which  side  of 
the  case  the  weight  or  preponderance  of  evidence  is  found;  and  it 
must  be  shown  affirmatively  by  the  plaintiff  in  error  that  the  ver- 
dict was  contrary  to  the  evidence,  or  was  not  sustained  by  sufficient 
evidence,  or  was  contrary  to  law,  before  this  court  may  interfere. 

ERROR  to  the  Third  District  Court  for  Unita  County. 

A  statement  of  the  case  is  given  in  the  opinion  of  the- 
court. 

H.  Grarbanati,  for  the  plaintiff  in  error,  cites :  Cherry  v. 
City  National  Sank  of  Chicago,  Eighth  Chicago  Legal  News  ; 
Rev.  Stat.  of  Wyoming,  54  ;  Belcher  v.  Lair/,  8  Mich.  29 ; 
Reynolds  v.  McCornie,  5  Chicago  Legal  News,  218;  Hilliard 
Rem.  for  Torts,  30 ;  Hilliard  on  New  Trials,  539. 

W.  W.  Corlett,  for  defendants  in  error,  cites  :  Laws  of 
Wyoming,  72 ;  Gra.  &  Wat.  on  N.  T.  380,  405 ;  Tracy  v. 
Sackett,  1  Ohio  St.  54  :  Grazly  v.  Hunter,  3  Id.  399  ;  Webb  v. 
Protection  Co.,  6  Ohio,  456 ;  12  Id.  151  ;  6  Ohio  St.  497  ; 
12  Id.  428  ;  Stiles  v.  McKibben,  2  Id.  588  ;  Administrator*  of 
Isaac  Perrin  v.  Ins.  Co.,  11  Ohio,  147 ;  Lessees  of  Ludlow 
Heirs,  4  Id.  44;  Reed  v.  Me  Grew,  5  Id.  387. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  in  re- 
plevin brought  in  the  district  court  in  and  for  the  third 


356  BYRNE  v.  MYERS.  [Sup.  Ct. 

Opinion  of  the  COui't— Fisher,  0.  J". 

judicial  district,  for  the  recovery  of  certain  work  oxen, 
alleged  by  plaintiff  to  be  wrongfully  detained  by  defendant. 
The  plaintiff,  to  maintain  his  action,  claimed  to  have  bought 
the  ..aid  cattle  from  ofle  Tbornto'n,  then  a  resident -of  Utah, 
and  produced  on  the  trial  a  bill  of  sale  conveying  the  right 
and  title  of  the  cattle  to  Myers,  the  plaintiff.  When  the 
case  was  called1  for  trial,  the  plaintiff  filed  a  motion  f of  con- 
tinuance, on  the  ground  of  an  absent  witness,  in  an  affi- 
davit filed  in  support  of  the  motion  for  continuance,  in 
which  he  set  out  at  large  that  the  absent  witness,  viz., 
Thornton,  who  had  given  plaintiff  the  said  Bill  of  sale,  that 
he,  Thornton,  would  swear,  if  present,  that  he  had  sold  the 
said  cattle  to  Myers,  the  plaintiff,  and  had  given  him  a  bill 
of  sale,  and  that  he  had  never  sold  the  said  cattle  to  Byrne, 
the  defendant.  The  court  granted  a  continuance  on  the 
showing  made  in  the  motion  and  affidavit,  when  the  defend- 
ant, by  his  counsel,  agreed  to  admit  that  Thornton,  if 
present,  would  swear  to  the  matters  stated  in  the  aforesaid 
affidavit.  Whereupon,  by  consent  of  parties,  a  jury  was 
waived  and  the  case  tried  by  the  court,  Thomas,  J.,  presid- 
ing. The  testimony  being  heard  on  behalf  of  plaintiff  and 
defendant,  the  court  found  for  the  plaintiff,  Myers,  that  he 
had  the  right  of  property,  and  to  the  immediate  possession 
thereof  at  the  time  of  the  commencement  of  the  action. 
Whereupon  the  defendant  filed  a  motion  for  a  new  trial,  upon 
the  reasons  filed,  being  the  same  as  set  out  in  his  bill  of  ex- 
ceptions in  this  court,  and  the  case  was  brought  here  by 
petition  in  error. 

The  first  exception  complained  of  is,  that  the  finding  of 
the  court  in  this  case  is  against  and  contrary  to  the  weight 
of  evidence  and  law  of  the  case  ;  second,  that  the  court 
erred  in  admitting  as  testimony  on  the  part  of  the  plaintiff 
the  books  of  defendant,  to  prove  an  account  between  de- 
fendant and  a  party  other  than  the  plaintiff;  third,  that  the 
defendant  was  surprised  by  the  testimony  of  one  C.  N. 
White,  a  witness  on  the  part  of  the  plaintiff,  and  could  not 
by  any  exercise  of  prudence  have  guarded  against  it,  or  by 


March,  1877.]  BYRFE  v.  MYERS.  357 

Opinioa  of,  the  Cpiirt — Fisher,  C.  J. 

any  probability  have  anticipated  it ;  fourth,  that  the  said 
defendant  has,  since  tlie  trial  of  tjiis  cause,  discovered  new 
and  material  evidence  in,;this  qase,  of  which  l,ie  was  entirely 
ignorant  until  after  t&e  case  was  submitted  to  the  court. 

The  court  fails  to  discover,  from  tjie  r,ecocd  in  t,h,is  case, 
any  error  of  which  the  plaintiff  in  error  l^as  the  slightest 
ground  for  complaint.  It  is  ;not  a  ground  of  error,  under 
the  statutes  of  this  territory,  that  a  case  is  decided  by  either 
a  cour.t  or  j.ury  agwist  the  supposed  weight  of  evidence, 
from  the  fact  that  it  is  the  province  ftf  a  jury,  ajgtd  of  the 
court  in  the  absence  of  a  jury,  to  determine  upon  which 
side  of  the  case  the  weight  or  preponderance  of  evidence  is 
found.  Subdivision  sixth  of  section  306  of  the  civil  code, 
found  on  page  7,2  of  the  compiled  statutes,  provides  that  a 
new  trial  may  be  granted  \yhen  the  verdict,  report  or  de- 
cision is  not  sustained  by  sufficient  evidence  and  is  contrary 
to  law,  and  for  the  reason  assigned  in  the  first  exception, 
but  Aye  think  that  an  examination  of  the  evidence  set  out  in 
the  record,  by  any  unprejudiced  mind,  will  very  fully  and 
satisfactorily  show  that  this  decision  is  very  fully  sustained 
by  the  evidence. 

The  second  error  complained  of  we  think  equally  un- 
founded. Our  statutes  provide  that  the  books  of  account 
and  other  records  and  papers  may  be  brought  into  court 
for  the  purposes  of  justice,  and  we  fail  to  discover  any  other 
purpose  in  their  being  exhibited  on  the  trial  of  this  case. 
They  were  the  books  of  the  defendant,  and  if  they  tended 
to  any  extent  to  contradict  his  oral  statements,  that  was  his 
misfortune  and  not  the  books. 

The  third  exception  is  still  more  groundless,  if  possible. 
It  sets  up  error  on  the  ground  of  the  surprise  of  defendant 
on  account  of  the  testimony  of  one  of  plaintiff's  witnesses 
called  in  to  rebut  the  statement  of  the  defendant  himself, 
while  he  was  still  in  court  and  might  have  denied  the  state- 
ment of  said  witness,  from  whose  testimony  he  alleges  sur- 
prise, especially  as  in  his  affidavit  filed  he  only  claims  to 
contradict  the  statement  of  plaintiff's  witness  by  his  own 


358  COUNTY  COMMISSIONERS  v.  HINTON.     [Sup.  Ct. 


Statement  of  Facts. 


denial.  The  fourth  exception  is  of  the  same  character  as  the 
third.  The  record  shows  that  the  after-discovered  testi- 
mony was  the  defendant  himself — that  is,  the  defendant 
below.  In  his  affidavit  for  a  new  trial  he  alleges  newly 
discovered  evidence,  which  it  was  impossible  for  him  to 
have  at  the  trial,  but  when  we  come  to  see  who  and  what 
the  newly  discovered  evidence  was  we  find  it  to  be  the  de- 
fendant below  himself.  To  set  aside  verdicts  upon  such  a 
showing  of  errors  would  be  making  a  mock  of  justice. 
Judgment  affirmed. 


THE   BOARD    OF  COUNTY   COMMISSIONERS    OF 
UINTA  COUNTY  v.  HINTON. 


PROCEEDINGS  IN  ERROII  —  BILL  OF  EXCEPTIONS—  MOTION  FOR  N 
TKIAL.  —  The  plaintiff  in  error  must  incorporate  his  motion  for  a 
new  trial  in  the  bill  of  exceptions,  and  thus  have  it  made  part  of 
the  recoi'd,  otherwise  the  proceedings  in  error,  on  motion,  will  be 
dismissed,  and  the  judgment  of  the  lower  court  affirmed. 

ERROR  to  the  Third  District  Court  for  tlnita  County. 

This  case  was  brought  to  the  supreme  court  by  writ  of 
error,  but  the  bill  of  exceptions  not  containing  the  motion 
for  a  new  trial,  on  motion  of  defendant  in  error  the  proceed- 
ings in  the  supreme  court  were  dismissed,  and  the  judgment 
of  the  district  court  affirmed. 

William  Gr.  Tonn,  for  the  motion. 
H.  Grarbanati,  opposed. 


March,  1877.J  JUBB  V.  TnofeEE.  359 

Argument  for  Appellee. 

i;    J)'io-;-''(    ->iij    iiiiiYl    xij/jijcju   uf   :.'•  f:J!,' J«l  .I-;;,'. ')  -j;!j  Y'! 

MOSHER  u;  THE  HILLIARD  FLUME  AND  LUMBER 
COMPANY. 

PROCEEDINGS  IN  ERBOB — BIZ.L  OF  EXCEPTIONS-EMOTION  FOR  NEW 
TRIAL. — The  plaintiff  in  error  must  incorporate  his  motion  for  a 
new  trial  in  the  bill  of  exceptions,  and  thus  have  it  made  part'of 
the  record,  otherwise  the  proceedings  in  error,  on  motion,  will  be 
dismissed,  and  the  judgment  of  the  lower  court  affirmed. 

EKROR  to  the  Third  District  Court  for  Unita  County. 

This  case  was  brought  to  the  supreme  court  by  writ  of 
error,  but  the  bill  of  exceptions  not  containing  the  motion 
for  a  new  trial,  on  motion  of  defendant  in  error  the  proceed- 
ings in  the  supreme  court  were  dismissed,  and  the  judgment 
of  the  district  court  affirmed. 

W.  W.  Corlett  and  William  G.  Tonn^  for  the  motion. 
H.  Garbanati,  opposed. 


JUBB  v.  THORPE. 

CHANCERY  JURISDICTION. — Where  the  parties  cannot  have  an  adequate 
remedy  at  law,  it  is  the  special  province  of  a  court  of  equity  to  as- 
sist parties  in  carrying  out  the  provisions  of  their  contracts,  when 
the  same  are  unstained  by  fraud. 

APPEAL  from  the  Third  District  Court  for  Uinta  County. 

A  sufficient  statement  of  the  case  appears  in  the  opinion 
of  the  court. 

E.  P.  Johnson,  for  appellant,  contended  that  the  com- 
plainant had  an  ample  remedy  at  law,  and  that  her  complaint 
should  be  dismissed,  citing  Story's  Eq.  Jur.  sec.  1031  ;  Id. 
sees.  1030, 1032 ;  Id.  sec.  49. 

H.  Garbanati,  for  appellee. 


3GO  JiiBB  v.  THORPE.  [Sup.  Ct. 

Opinion  of  the  Court—  Blair,  J. 

By  the  Court,  BLAIR,  J. :  It  appears  from  the  record  in 
t^ie  case  thajt  tjie  cojnplaijnanjk,  Annje  <futybj  pn  the  $fteenth 
day  of  January,  A.  D.  1^75,  fy\Q(l  her  amended  bill  of  com- 
plaint against  the  defendant  in  the  district  court  of  Uinta 
county,  setting  forth  substantially  the  following  facts,  viz : 
That  the  defendant,  on  or  about  ttye  second  day  of  May, 
18-74,  being  sensed  .apd  pos^ssed  of  ^WQ  jceptftis,  .houses 
described  in  the  bill,  situate  hi  the  town  of  Evanston,  in  the 
county  of  Uinta,  in  the  territory  of  Wyoming,  applied  to 
complainant  for  a  loan  of  one  thousand  seven  hundred  and 
thurty-two  dollars,,  th.e  payment  of  tjlje  same  tp  be  secure/d  by 
a  mortgage  pn  the  property  aforesaid' 

Tlfe  cpmplainant  charges  that  she  loaned  the  defendant 
;the  sum  aforesaid,  and  tp  secure  the  payment  of  the  same 
took  a  mortgage  on  the  property  aforesaid ;  that  only  a  part 
of  the  sum  loaned  the  defendant  had  been  paid  to  her,  leav- 
ing a  large  balance,  with  the  interest  due  thereon,  still  due 
and  unpaid ;  that  by  some  mistake  there  was  but  one  wit- 
ness to  the  execution  of  said  mortgage,  when  there  should 
have  been  two  ;  that  said  mortgage  provided,  amongst  other 
things,  that  in  the  event  the  said  sum  of  money  was  not  paid 
by  the  defendant  when  it  became  due  and  payable,  "  the 
said  Annie  Jubb  shall  have  the  right  to  take  immediate  pos- 
session of  said  property,  and  sell  the  same  at  public  auction 
in  manner  provided  by  law."  The  bill  then  avers  tha.t  there 
is  no  special  manner  provided  by  law  to  sell  said  property, 
in  accordance  with  the  terms  of  said  mortgage.  The  com- 
plainant then  prays  that  relief  may  be  granted  her  in  the 
premises ;  that  the  court  will  decree  the  property  to  be  sold, 
her  debt  paid,  an,d  for  general  relief. 

The  defendant  appeared  and  answered  the  bill  of  the  com- 
plainant, and  the  plaintiff  filed  a  replication  to  said  answer. 
The  court  decreed  the  property  sold,  which  was  accordingly 
done,  and  the  sale  was  confirmed.  Thereupon  the  defendant 
appealed  to  this  court. 

The  only  question  presented  for  the  consideration  of  this 
court  in  the  argument  of  counsel,  was  that  of  jurisdiction. 


March,  1877.]         &AGLE  v.  RUTLEDGE.  861 

Argument  for  Defendant  in  Error. 

While  it  may  be  said  to  be  an  almost  inflexible  rule,  that  a 
court  of  equity  will  not  assume  jurisdiction,  when  the  party 
seeking  relief  has  a  full  and  adequate  remedy  at  law ;  yet, 
when  this  is  not  the  case,  it  is  the  special  province  of  a 
court  of  equity  to  assist  parties  in  carrying  out  their  con- 
tracts when  unstained  by  fraud :  Bouv.  Inst.  vol.  2,  3910- 
12-13-15 ;  Evans  v.  Strode,  11  Ohio,  4BO.  In  this  case  it  is 
apparent  that  there  is  no  adequate  remedy  at  law,  by  means 
of  which  the  clear  and  evident  intention  of  the  parties  could 
be  fully  carried  out.  We  are,  therefore,  of  opinion  that  the 
court  below  rightfully  assumed  jurisdiction  of  the  erase ;  that 
the  appeal  should  be  dismissed  and  the  decree  and  proceed- 
ings of  the  court  below  affirmed. 

Appeal  dismissed  and  decree  affirmed. 


NAGLE  v.  RUTLEDGE. 

VERDICT — NEW  TRIAL. — A.  verdict  will  not  be  set  aside,  nor  a  new  trial 
ordered,  if  it  is  apparent  that  substantial  justice  has  been  rendered, 
especially  if  it  is  also  evident  that  another  jury  would  not  mate- 
rially vary  the  findings  of  the  first. 

ERROR  to  the  First  District  Court  for  Laramie  County. 

A  sufficient  statement  of  the  case  will  be  found  in  the 
opinion  of  the  Court. 

W.  W.  Corlett,  for  the  plaintiff  in  error,  contended  that 
the  district  court  erred  in  not  granting  defendant's  motion 
to  compel  the  plaintiff,  upon  the  trial,  to  elect  upon  which 
of  the  separate  causes  of  action  he  would  proceed  to  verdict, 
and  cited:  1  Phill.  on  Ev.  * 854  ;  Pierce  v.  Pickens,  16  Mass. 
470  ;  Willard's  Eq.  Jur.  92;  8  Graham  &  Waterman,  710  et 
seq. ;  Pendleton  St.  R.  R.  Co.  v.  Statman,  22  Ohio  St.  1. 

E.  P.  Johnson,  for  defendant  in  error,  cited  in  opposition, 
1  Chitty  PI.  *340,  *344  ;  1  Nash,  553,  361 ;  Pom.  on  Rcm. 


362  NAGLE  v.  RUTLEDGE.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

sees.  540-54;  17  N.  Y.  227  ;  4  Cow.  564;  11  Wend.  584;  4 
Wend.  285 ;  13  Wend.  276 ;  28  N.  Y.  438 ;  3  Phill.  Ev.  *401, 
*411 ;  2  Greenl.  sec.  104. 

By  the  Court,  THOMAS,  J. :  This  was  an  action  brought 
by  the  defendant  in  error,  T.  W.  Rutledge,  against  the 
plaintiff  in  error,  Erasmus  Nagle,  to  recover  the  sum  of 
seven  thousand  three  hundred  and  forty-six  dollars  and  nine- 
teen cents  for  the  work,  labor,  care  and  diligence  of  the  said 
Rutledge,  and  for  material  furnished  and  provided  for  the 
erection  of  a  building  for  said  Nagle  at  his  request,  the 
plaintiff  alleging  that  the  amount  named  was  due  him  Jan- 
uary 1,  1873,  and  that  the  said  services  and  materials  were 
reasonably  worth  said  sum. 

The  defendant  answered :  1.  By  a  general  denial ;  2.  Pay- 
ment ;  3.  A  special  contract  under  which  the  building  in 
question  was  to  be  erected  for  the  sum  of  five  thousand 
five  hundred  and  thirty  dollars  and  payment  of  that  amount ; 
4.  A  counter-claim  for  damages  for  non-performance  of  the 
contract  in  several  particulars. 

After  trial  before  Chief  Justice  Fisher  and  a  jury,  a  ver- 
dict was  rendered  in  favor  of  the  plaintiff  for  nine  hun- 
dred and  thirty-nine  dollars  and  sixty-three  cents.  After 
a  motion  for  a  new  trial  had  been  made  and  refused,  judg- 
ment was  entered  in  accordance  with  said  verdict,  where- 
upon the  case  was  brought  by  petition  in  error  to  this  court. 
While  six  errors  are  assigned  in  the  petition  in  error,  but 
one  was  really  argued  or  urged  upon  the  hearing  of  the  case. 
It  appears  from  the  evidence  that  a  contract  partly  ex- 
pressed and  partly  implied  was  entered  into  between  the 
plaintiff  and  defendant  for  the  construction  of  the  building 
in  question  ;  that  this  contract  was  made  very  loosely,  and 
was  subsequently  very  materially  modified  by  the  consent  of 
parties  in  the  way  of  alterations,  additions  and  extra  work 
and  quality  of  material.  The  petition  containing  but  one 
count,  the  counsel  for  the  defendant  at  the  close  of  the 
plaintiff's  testimony,  which  related  to  these  alterations,  ad- 


March,  1877.]         NAGLE  v.  RUTLEDGE.  363 

Opinion  of  the  Court — Thomas,  J. 

ditions,  etc.,  moved  the  court  to  order  said  plaintiff  to  elect 
on  which  of  the  separate  courses  of  action  he  would  pro- 
ceed to  verdict.  And  the  chief  error  assigned  throughout  is 
the  permitting  by  the  court  of  these  alleged  several  causes 
of  action  going  to  the  jury  under  the  one  count  contained  in 
plaintiff's  petition.  The  court  overruled  the  motion  of  the 
defendant,  and  we  think  properly  for  two  reasons : 

1.  That  the  petition  under  our  rules  of  practice  as  well 
settled  by  various  decisions,  was  amply  sufficient  to  cover 
and  embrace  the  several  items  mentioned. 

2.  That  the  motion  to  elect  was  made  too  late,  that  is  to 
say,  after  all  the  evidence  had  been  introduced  on  behalf  of 
the  plaintiff.     If  it  had  merits  at  all  it  should  have  been  in- 
troduced at  a  much  earlier  stage  in  the  trial. 

In  reference  to  the  first  reason  mentioned  why  said  mo- 
tion was  properly  overruled,  it  is  proper  to  state  that  upon 
a  careful  examination  of  the  entire  record,  we  find  that  the 
items  to  which  the  greatest  objection  was  made  on  the  trial 
by  the  defense  were  either  so  far  renounced,  rejected  or  ex- 
plained before  the  close  of  the  trial  that  the  jury  could  not 
have  been  misled  by  them  in  arriving  at  their  verdict,  and 
that  those  items  which  still  remained  very  properly  came 
under  the  general  count,  for  they  were  not  entire  and  sep- 
arate counts,  but  matters  merely  growing  out  of  and  con- 
nected with  the  principal  contract  and  were  part  thereof,  as 
bearing  the  same  relation  thereto  that  branches  do  to  a  tree, 
growing  and  arising  out  of  and  forming  and  composing  a  por- 
tion of  the  same. 

But,  further,  we  consider  the  practice  as  settled  in  this 
territory  that  in  actions  of  the  nature  of  the  one  under  con- 
sideration the  general  count  as  the  one  contained  in  the 
plaintiff's  petition  herein  is  sufficient  to  allow  the  proof  of 
several  items  of  a  bill.  We  do  not  consider  it  necessary 
that  there  should  be  a  separate  count  for  each  item  where 
they  are  connected  so  intimately  with  the  principal  subject- 
matter  as  they  are  in  this  case.  We  do  not  know  that  this 
question  of  practice  has  been  previously  decided  in  this 


364  FREEMAN  v.  CROU?.  [Sup.  Ct. 


Statement  of  Facts. 


court;  but  it  has  been  in  several  instances  in  the  various 
district  courts  of  this  territory.  We  are  further  of  the  opin- 
ion from  the  examination  of  the  record  in  this  case : 

1.  That  manifest   and  material  judgment  has  been  ren- 
dered by  the  judgment  of  the  district  court  herein. 

2.  That  even  if  such  justice  hud  not  been  strictly  ren- 
dered that  it  is  exceedingly  doubtful  to  say  the  least,  whether 
if  a  new  trial  were  granted  a  different  verdict  and  judgment, 
or  one  more  nearly  setting  the  rights  of  the  parties  herein 
justly  and  equitably,  could  be  obtained. 

3.  That  in  this  instance  the  general  presumption  in  favor 
of  verdicts  and  judgments  should  be  given  full  weight. 

As  the  other  errors  assigned  were  neither  expressly  urged 
nor  fully  argued,  we  do  not  deem  it  necessary  further  to 
refer  to  them,  except  to  state  that  upon  due  examination  of 
them  we  do  not  find  in  them  any  error  that  would  justify 
this  court  in  modifying  or  reversing  the  judgment  of  the 
district  court. 

Such  judgment  is  affirmed  and  writ  of  procedendo  ordered. 


FREEMAN  v.  GROUT. 

EJECTMENT. — Under  the  statutes  of  Wyoming  territory  it  is  not  neces- 
sary that  the  plaintiff  is  the  owner  of  the  real  estate  in  question  in 
fee-simple  absolute.  It  is  sufficient  if  he  is  entitled  to  the  legal  or 
equitable  estate  therein. 

EVIDENCE. — A  deed  or  conveyance  executed  in  another  territory  or 
state  accordiug  to  the  laws  of  that  territory  or  state,  of  lands  in 
Wyoming,  is  executed  according  to  the  laws  of  Wyoming, .if  perti- 
ment  and  relevant,  should  be  admitted  in  evidence,  and  it  is  error 
for  the  court  to  refuse  testimony  tending  to  prove  what  the  law  is 
in  reference  thereto  in  such  other  state  or  territory. 

ERROR  to  the  Second  District  Court  for  Albany  County. 

A  sufficient  statement  of  this  case  will  be  found  in  the 
opinion  of  the  court. 


March,  1877.]          FREEMAN  v.  GROUT.  365 

Opinion  of  the  Court — Thomas,  J. 

J.  W.  Kingman,  for  plaintiff  in  error,  cited  :  Laws  of  Ne- 
braska, 872 ;  4  Kent,  447 ;  18  How.  56  ;  9  Cush.  475 ;  6 
Met.  439. 

Brown  £  Brockway,  for  the  defendant  in  error,  cited: 
3  Wash,  on  Rl.  Property,  249,  250 ;  1  Par.  on  Con.  139, 140  ; 
Angel  &  Ames,  190,  192;  36  Vt.  452;  Redfield  R.  R.  Cases, 
539  ;  Tyler  on  Eject.  541,  542  ;  9  Cal.  1 ;  52  111.  49,  219. 

By  the  Court,  THOMAS,  J.  (BLAIR,  J.,  dissenting)  :  This 
action  was  brought  to  recover  the  possession  of  certain 
real  estate  in  Laramie  city,  Albany  county,  and  territory 
of  Wyoming.  The  plaintiff  (being  the  present  plaintiff  in 
error)  in  his  petition,  alleges  the  legal  title  thereto  in  him- 
self, and  that  the  defendant,  on  the  fourteenth  day  of  Oc- 
tober, A.  D.  1870,  entered  upon  the  aforesaid  premises,  and 
has  ever  since  unlawfully  kept  him,  the  said  plaintiff,  out 
of  the  possession  thereof.  In  the  second  count  of  said  peti- 
tion the  plaintiff  claims  damages  in  the  sum  of  three  thou- 
sand dollars  by  reason  of  such  entry  and  detainer.  The 
plaintiff  claimed  title  and  right  of  possession  from  the 
United  States,  through  the  Union  Pacific  Railroad  Com- 
pany and  one  Fred.  W.  Freeman.  The  district  court  ad- 
mitted in  evidence  the  patent  from  the  United  States  to 
said  company  conveying  the  premises  in  question,  and  also 
the  quitclaim  deed  from  said  Fred.  W.  Freeman  to  the 
plaintiff,  but  refused  to  admit  an  instrument  purporting  to 
be  a  deed  or  conveyance  from  the  Union  Pacific  Railroad 
Company  to  said  Fred.  W.  Freeman,  which  refusal,  together 
with  the  charge  of  the  court  to  the  jury  upon  that  subject, 
form  the  principal  errors  assigned  by  the  plaintiff.  Upon 
the  trial  of  the  cause  the  plaintiff  adduced  evidence  tending 
to  prove  the  occupancy,  possession  and  rights  of  his  grantor. 
The  two  deeds  in  question  bear  date  as  follows  :  the  one  to 
Fred.  W.  Freeman  from  the  railroad  company,  May  7,  A.  D. 
1869,  and  the  one  from  Fred.  W.  Freeman  to  the  plaintiff, 
December  28,  A.  D.  1869. 


366  FREEMAN  v.  GROUT.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

The  defendant  introduced  no  evidence.  Judgment  was 
rendered,  in  accordance  with  the  verdict  of  the  jury,  for  the 
defendant. 

As  already  stated,  the  chief  errors  assigned  are  the  ruling 
out  of  the  court  below  of  the  instrument  purporting  to  be  a 
deed  from  the  Union  Pacific  Railroad  Company  to  Fred.  W. 
Freeman  and  the  charge  of  the  court  in  reference  thereto. 
Two  other  questions  of  considerable  importance  appear  to 
have  been  raised  in  the  court  below,  but  one  of  them  is  not 
mentioned  in  the  assignment  of  errors,  and  the  other,  while 
contained  in  such  assignment,  is  not  otherwise  referred  to 
in  the  record,  and  consequently  cannot  be  considered  at 
this  time. 

Before  proceeding  further  it  will  be  well  to  refer  to  sev- 
eral portions  of  the  statutes  of  the  territory  which  have  a 
bearing  upon  this  case.  Section  557  of  the  code  provides, 
"  in  an  action  for  the  recovery  of  real  property  it  shall  be 
sufficient  if  the  plaintiff  state  in  his  petition  that  he  has  a 
legal  or  equitable  estate  therein,  and  is  entitled  to  the  pos- 
session thereof,  describing  the  same  as  required  by  section 
123,  and  that  the  defendant  unlawfully  keeps  him  out  of  the 
possession.  It  shall  not  be  necessary  to  state  how  the 
plaintiff's  estate  or  ownership  is  derived."  Section  558 
reads,  "  it  shall  be  sufficient  in  such  action  if  the  defendant 
in  his  answer  deny  generally  the  title  alleged  in  the  petition, 
or  that  he  withholds  the  possession,  as  the  case  may  be ;  but 
if  he  deny  the  title  of  the  plaintiff,  possession  by  the  de- 
fendant shall  be  ta,ken  as  admitted  *  *  *  *  ."  It  will 
be  seen  by  section  557  that  the  plaintiff  in  an  action  of  this 
nature,  in  order  to  recover  is  not  compelled  to  show  that  he  is 
the  owner  of  the  premises  in  fee-simple  absolute,  but  simply 
that  he  has  a  legal  or  equitable  estate  therein.  Hence  the 
answer  in  this  case  is  not  the  general  denial  provided  for 
in  section  558,  and  is  consequently  insufficient.  It  is  fur- 
ther provided  in  section  7,  chapter  3,  Laws  of  Wyoming, 
that  "no  grant  or  conveyance  of  lands,  or  interest  therein, 
shall  be  void  for  the  reason  that  at  the  time  of  the  execu- 


March,  1877.]          FREEMAN  v.  GROUT.  367 


Opinion  of  the  Court — Thomas,  J. 


tion  thereof  such  land  shall  be  in  the  actual  possession  of 
another  claiming  adversely,"  which  provisions  are  in  con- 
travention of  the  law  and  decisions  of  many  states,  and 
effectually  do  away  with  the  old  rules.  We  also  find  in 
section  3  of  the  same  chapter  the  following,  "  a  deed  of  quit- 
claim and  release  shall  be  sufficient  to  pass  all  the  estate 
which  the  grantor  would  lawfully  convey  by  deed  of  bargain 
and  sale,"  which  section  certainly  establishes  the  law  as  we 
have  always  understood  it,  the  contrary,  however,  having 
sometimes  been  asserted  in  the  territory,  though  probably 
without  any  reference  to  the  section  cited. 

In  cases  of  this  nature  it  has  been  held  sufficient  in  this 
territory,  and  such  has  been  the  practice,  for  the  plaintiff 
to  show  the  possession  of  his  grantor,  and  then  to  introduce 
the  deed  to  himself,  consequently  it  will  not  be  disputed : 

1.  That  the  deed  from  Fred.  W.  Freeman  to  plaintiff  con- 
veyed to  said  plaintiff  all  the  right,  title  and  interest  of  the 
said  Fred.  W.  Freeman. 

2.  That  if  said  Fred.  W.  Freeman  was   in  possession  of 
said  premises  at  the  time  of  the  execution  of  said  last-men- 
tioned deed,  whether  such  possession   was  actual,  legal  or 
constructive,    then   the    deed   from    Fred.  W.    Freeman    to 
plaintiff  is  sufficient  to  establish  for  him  a  prim  a  facie  case. 

I  am  aware  that  it  is  urged  by  defendant's  counsel  that 
Fred.  W.  Freeman  was  not  then  in  possession,  and  that 
the  plaintiff  states  upon  his  cross-examination  that  said 
Fred.  W.  Freeman  was  not  in  possession  at  that  time,  as  he 
had  gone  east  to  get  married.  But  what  are  we  to  under- 
stand in  this  case,  after  duly  considering  all  the  circum- 
stances, by  the  term  "  possession  ?  "  The  evidence  shows 
that  Fred.  W.  Freeman  was  in  actual  possession  at  a  time 
only  shortly  prior  thereto.  We  have  seen  that  the  two 
deeds  mentioned  were  executed  some  months  prior  to  the 
entry  and  detainer  on  the  part  of  the  defendant  Wm. 
Grout,  and  it  is  nowhere  shown  that,  at  the  time  the  deed 
last  mentioned  was  executed,  there  was  any  adverse  posses- 
sion to  Fred  W.  Freeman  whatever.  Passing  upon  all 


868  FREEMAN  v.  CJBOUT.  [Sup.  Ct. 

Opinion  of  the  Court — Thomas,  J. 

these  facts,  it  would  not  be  very  difficult  to  draw  the  infer- 
ence that,  upon  the  twenty-eighth  day  of  December,  A.  D. 
1869,  Fred.  W.  Freeman,  though  not  in  the  actual,  was  in 
the  legal  possession  of  the  premises  in  dispute.  A  man 
may  be  in  Europe,  and  yet  have  legal  valid  possession  of 
real  estate  in  Wyoming  territory.  In  our  opinion,  the  ques- 
tion of  possession  should  have  been  more  fully  left  to  the 
jury  after  it  had  been  by  the  court  specifically  instructed 
as  to  what  constitutes  legal  possession.  Had  the  jury  then 
found  for  plaintiff,  the  instrument  purporting  to  be  a  deed 
from  the  U.  P.  R.  R.  would  not  have  been  as  material. 

The  precise  objections  to  the  introduction  of  this  instru- 
ment do  not  appear  so  clearly  from  the  record  as  from  the 
arguments  of  counseL  We  understand  them  to  be : 

1.  That  the  same  is  not  executed  according  to  the  laws  of 
this  territory; 

2.  That  it  Las  not  affixed  to  it  the  corporate  seal  of  the 
railroad  company ; 

3.  That  it  does  not  contain  the  signature  of  said  corpora- 
tion, but  only  that  of  G.  M.  Dodge,  agent  and  trustee ; 

And,  4.  That  the  instrument  itself  is  not  sufficient  in  law. 

Our  statutes,  p.  5,  sec.  8,  laws  of  1875,  provide  how  such 
instruments  shall  be  executed,  acknowledged,  etc.,  when 
done  within  the  territory.  While  section  9,  on  page  6, 
provides  what  shall  be  necessary  where  the  deed  or  mort- 
gage is  executed  in  some  other  state  or  territory.  And 
upon  a  careful  examination  of  the  certificate,  affixed  to  the 
alleged  conveyance  from  the  U.  P.  R.  R.  to  Fred.  W.  Free- 
man, we  find  that  it  strictly  complies  with  the  statutes  in 
such  case  made  and  provided,  prima  facie,  therefore  the 
deed  is  correct  and  duly  executed.  And  it  is  to  be~ re- 
membered that  no  evidence  whatever,  by  way  of  contradic- 
tion, rebuttal  or  otherwise,  was  introduced  upon  the  trial 
on  the  part  of  the  defense.  Of  course,  the  instrument 
would  be  irregular  and  defective,  but  for  the  provisions  of 
sec.  9,  p.  6,  laws  of  1875.  But  with  those  provisions  and 
the  certificate  attached,  I  am  of  the  opinion  that  the  first 


March,  1877.]          FREEMAN  v.  GROUT.  369 

Opinion  of  the  Court — Thomas,  J. 

and  second  objections  to  the  introduction  of  the  instrument 
are  fully  obviated. 

As  to  the  third  objection,  I  think  that  the  signature  to 
the  instrument  is  defective,  but  I  am  not  certain  that  the 
defect  cannot  be  cured  by  testimony  upon  that  point.  Such 
testimony,  or  testimony  bearing  upon  the  question,  was 
6ffered  by  the  plaintiff  and  ruled  out  by  the  court,  viz., 
the  resolution  of  the  directors.  As  far  as  appears  from 
the  records,  that  resolution  should  have  been  admitted  in 
evidence.  It  is  not,  however,  fully  set  forth  in  the  record, 
and  thus  we  are  unable  to  say  but  that  there  may  have  been 
sufficient  grounds  for  rejecting  it.  But  from  the  record, 
which  is  our  guide,  there  does  not  appear  to  have  been. 
But,  whether  such  defect  could  have  been  cured  or  not,  we 
still  find  the  certificate,  in  due  form,  of  the  proper  officer 
attached,  according  to  our  statutes,  to  the  effect  that  said 
instrument  was  duly  executed,  according  to  the  laws  of  the 
state  in  which  it  was  so  executed,  viz.,  Nebraska,  which 
certificate  remains  unimpeached.  And  we  are  of  the  opin- 
ion that,  while  this  instrument  in  its  present  form  may  not 
be  sufficient  to  convey  a  fee,  it  may  be  to  convey  "  a  right 
of  possession,"  and  with  proper  proof  a  legal  estate. 

The  fourth,  as  well  as  the  third  objection,  is  referred 
to  in  the  foregoing ;  the  deed  is  in  due  form,  otherwise  than 
is  stated  above,  and  as  to  its  validity,  it  makes  no  difference 
in  this  instance  whether  the  consideration  was  one  dollar  or 
one  thousand  dollars.  It  was  an  error  to  overrule  the  admis- 
sion of  this  instrument.  It  affected  the  substantial  rights 
of  parties.  It  should  have  been  admitted  for  the  jury  to 
pass  upon  under  the  proper  instructions  of  the  court. 

The  judgment  of  the  district  court  is  reversed  and  a  new 
trial  ordered. 
24 


370  WILD  v.  STEPHENS.  [Sup.  Ct. 

Argument  for  Complainant. 


WILD  v.  STEPHENS  ET  AL. 

MORTGAGE — FORECLOSURE— SUBSEQUENT  INCUMBR  ANCERS. — While  the 
mortgagor,  in  an  action  of  foreclosure,  may,  if  he  desires,  plead  the 
statute  of  limitations,  it  is  a  personal  privilege,  and  does  not  pass 
to  subsequent  incumbrancers. 

IDEM. — Although  the  note  for  winch  a  mortgage  is  given  as  security 
upon  real  estate  may  he  barred  by  the  statute  of  limitations,  yet  if 
such  mortgage  is  not  likewise  barred,  the  mortgagee  still  retains 
sufficient  equitable  interest  therein  to  enable  him  to  foreclose  the 
same. 

APPEAL  from  the  First  District  Court  for  Laramie  County. 

A  full  statement  of  the  case  will  be  found  in  the  follow- 
ing opinions.. 

D.  McLaughlin,  for  complainant  and  appellee,  contended  : 

I.  That  the  laws   of  Wyoming  postpone  an  unrecorded 
conveyance  only  as  against  a  subsequent  purchaser  or  in- 
cumbrancer   in   good   faith   for    a    valuable    consideration, 
citing :  4  Kent's  Com.  165-178 ;  Id.  456-459  ;  Dickenson  v. 
Tillinghast,  4  Paige,  215. 

II.  That  defendants,  appellants,  could  not  appear  in  this 
cause  to  plead  the  statute  of  limitations,  and  citing :  Angell 
on  Lim.  449  ;  4  Kent's  Com.  136,  154 ;  2  Blackstone,  157  ; 
Bank  of  Metropolis  v.  Gultslick,  14  Pet.  19;  Lord  v.  Morris, 
18  Cal.  488  ;  Wyoming  Code,  1869,  509. 

III.  That  though  the  notes   be  barred,   the  lien  of  the 
mortgage  remains  good,  citing :  Sparks  v.  Pico,  1   McAllis- 
ter; U.  S.  Cir.  Court  R.  479 ;  Longworth  v.  Taylor,  2  Supe- 
rior Court  (Ohio),  39 ;  Almy  v.    Wilber,  2  Woodb.  &  M.  371  ; 
Thayer  v.  Mann,  19  Pick.  535. 

IV.  That   judgments  are  liens  upon    the  legal  estate  of 
judgment  debtors,  and  not  upon    their  equitable  interests, 
citing  :  Jackman  v.  Halle  <:lc,  1   Ohio,  318 ;    Douglas  v.  Hous- 
ton, 6  Id.  156  ;  Barr  v.  Hatch,  3  Id.  527  ;  Roads  v.  iSymmes, 


March,  1877.]  WILD  v.  STEPHENS.  371 

Argument  for  Appellants. 

1  Id.  281;  Laws  of  Dakota.,  1867-8,  232;  Bachman  v. 
Sepulveda,  29  Cal.  688;  Laws  of  Wyoming,  1869,  707; 
Freeman  on  Judgments,  sees.  407,  409  ;  1  Greenl.  on  Ev. 
sees.  501,  503. 

V.  That  the  assignment  of  a  note  secured  by  mortgage 
transfers  all  the  rights  secured  by  the  mortgage,  citing : 
Pain  v.  French,  4  Ohio,  318  ;  8  Id.  222 ;  1  Johns.  509 ;  5 
Cowen,  203  j  4  Id.  43 ;  9  Wend.  80 ;  13  Barb.  203 ;  23  Id. 
461. 

E.  P.  Johnson  and  W.  W.  Corlett,  for  appellants,  contended 
that: 

I.  The  decree  declares  that  the  judgments  of  Stephens 
and  Babcock  &  Co.,  are  not  liens  upon  the  property  de- 
scribed in  the  mortgage,  whereas  the  statute  expressly  de- 
clares a  judgment  to  be  a  lien  on  real  estate  from  the  first 
day  of  the  term  at  which  it  was  rendered,  and  not  later  than 
the  date  of  rendition  :  Laws  of  1869,  sec.  446,  p.  594.  And 
in  absence  of  statutory  provisions,  it  would  be  a  lien  at  com- 
mon law :  Freeman  on  Judgts.  sec.  339.  The  judgments 
being  liens  subject  only  to  the  prior  lien  of  the  mortgage, 
the  judgment  creditors  became  subsequent  incumbrancers, 
and  were  properly  parties  in  the  foreclosure  suit.  It  was, 
however,  held  by  the  court  below,  that  the  judgments  were 
not  liens  on  the  interest  of  the  mortgagor,  as  his  interest 
was  simply  an  equitable  one  ;  such  holding  was,  however, 
directly  in  the  face  of  all  authority  of  any  pretension  to 
respectability  on  that  subject.  Equity  has  always  consid- 
ered a  mortgage  simply  a  security,  a  chattel  interest :  Story 
on  Eq.  Jur.  sees.  1013-1017  ;  2  Wash.  Real  Prop.  96, 151 ;  Car- 
penter v.  Loyan,  16  Wallace,  271 ;  4  Kent,  *  158-162  ;  Phelps 
v.  Butler,  2  Ohio,  223;  Ely  v.  MeGidre,  Id.  223;  Hitch- 
cock v.  Harrington,  6  Johns.  290 ;  Jackson  v.  Wi/larJ,  4  Johns. 
41  ;  Eaton  v.  Whitney,  3  Pick.  484 ;  2  Blackstone,  book  3, 
*  435  ;  Eyster  v.  Go/,  IT.  S.  Sup.  Court  Legal  News,  Feb.  20, 
1876  ;  2  Wash,  on  Real  Prop.  *  546. 


372  WILD  v.  STEPHENS.  [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

II.  Appellants,  being  subsequent  incumbrancers  and  par- 
ties to  the  bill,  had  a  right  to  set  up  the  defense  of  the  stat- 
ute of  limitations  in  bar  of  complainant's  claim.      The  de- 
fense, though  in  general  a  personal  privilege,  may  be  set  up 
by  any  one  interested  in  the  claim  to  which  it  is  interposed : 
Angel  on  Lira.  289,  801,  302  ;  Ford  v.  Langee,  4  Ohio  St. 
464  ;  Lord  v.  Morris,  18  Cal.  482.     That  courts  of  equity  are 
governed  by  the  law  limiting  actions  equally  with  courts  of 
law:  Angel  on  Lim.  20-24. 

III.  The  court  below  erred  in  finding  that  there  was  any 
sum  due  complainant  on  the  notes.     There  is  no  covenant 
in  the  mortgage  for  the  payment  of  money.     The  only  obli- 
gation in  that  direction  recognized  in  the  mortgage,  is  that 
arising  on  the  notes  therein  recited,  and  which  the  mortgage 
is  given  to  secure.     The  notes  sued  on  were  given  June  1, 
1869.     At  that  time  the  laws  of  Dakota  were  in  force  herfe, 
but  they  were  repealed  January  1, 1870 :  Laws  o,f  1869,  707. 
The  limitation  law  of  1869  required  action  to  be  commenced 
within   five  years   after   cause   therefor  accrued :  Laws  of 
Wyoming,  1869,  510.     The  code  of  1869  is  the  code  in  force 
for  the  purposes  of  this  action :  Laws  of  1873,  sec.  710,  page 
163.     This  bill  was  filed  May  28,  1875.     There  had  been  no 
payments  made  on  the  notes  of  principal  or  interest,  and 
action  thereon  was  fully  barred  a  long  time  prior  to  the 
commencement  of  the  action.     The  court,  therefore,  erred 
in  its  findings  and  decree.     Defendant's  cross-bill  should  have 
been  dismissed,  but  the  prayer  thereof  granted,  and  plain- 
tiff's bill  dismissed. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  in  chan- 
cery, brought  to  this  court  from  Laramie  county  at  March 
term,  A.  D..1876.  The  record  in  this  case  shows  that  on  the 
first  day  of  June,  A.  D.  1869,  at  Cheyenne,  Laramie  county, 
Wyoming  territory,  Isaac  W.  French,  defendant  in  this 
action,  made  and  delivered  to  one  Henry  J.  Rogers  three 
promissory  notes,  amounting  in  the  aggregate  to  the  sum  of 
three  thousand  six  hundred  and  ten  dollars  and  seventy-four 


March,  1877.]          WILD  v.  STEPHENS.  373 

Opinion  of  the  Court — Fisher,  C.  J. 

cents  ;  two  of  them  payable  in  sixty  and  ninety  days  and 
one  at  four  months  from  the  date  thereof. 

On  the  second  day  of  June,  A.  D.  1869,  the  said  French 
executed  and  delivered  to  the  said  Rogers  a  mortgage  on 
certain  lots  in  the  city  of  Cheyenne  to  secure  the  payment 
of  said  notes.  This  mortgage  was  recorded  in  the  records 
of  Laramie  county  on  the  second  day  of  April,  A.  D.  1870. 

On  the  eighth  day  of  November,  A.  D.  1569,  John  Stephens 
commenced  a  suit  in  the  district  court  in  and  for  Laramie 
county,  in  said  territory,  against  Virginia  G.  Adams,  Helen 
Green  and  Isaac  W.  French,  partners  as  Adams,  Green  & 
Co.,  and  Gilbert  Adams.  On  the  thirtieth  day  of  April,  A.  D. 
1870,  a  judgment  was  entered  against  defendants  and  in 
favor  of  said  plaintiff  for  the  sum  of  five  hundred  and  sixty- 
eight  dollars  and  five  cents. 

On  the  eighth  of  August,  A.  D.  1871,  at  the  July  term  of 
the  district  court,  in  and  for  Laramie  county,  Francis  M. 
Babcock  and  John  Babcock,  partners  as  Babcock  &  Co., 
recovered  a  judgment  against  Virginia  Adams,  Helen  M. 
Green  and  Isaac  W.  French,  late  partners  as  Adams,  Green 
&  Co.,  and  Gilbert  Adams.  The  record  states  that  on  the 
day  above  named  came  the  parties,  and  by  agreement  the 
cause  is  tried  by  the  court,  and  a  judgment  was  rendered 
against  defendants,  and  in  favor  of  plaintiffs,  for  the  sum  of 
four  thousand  one  hundred  and  fifty-eight  dollars  and  twenty- 
seven  cents.  The  record  fails  to  show  how  jurisdiction  was 
obtained,  but  states  that  a  trial  was  had  by  the  agreement 
of  parties. 

It  will  be  observed  the  singular  mixture  of  the  names  of 
the  parties.  The  Babeock  firm,  who  recovered  judgment 
against  Adams,  Green  &  Co.,  is  shown  by  the  record  to  be 
composed  of  Francis  M.  Babcock  and  John  Babcock,  whilst 
the  firm  contesting  in  this  action  is  composed  of  Thomas  W. 
Babcock  and  John  Babcock.  This  discrepancy  of  names  is 
sufficient,  in  my  judgment,  to  dismiss  them  as  parties  in  the 
future  consideration  of  this  case,  and  I  shall,  therefore,  con- 
fine myself  to  a  discussion  of  the  relations  existing  between 


374  WILD  v.  STEPHENS.  [Sup.  Ot. 

Opinion  of  the  Court — Fisher,  C.  J. 

John  Stephens  and  the  estate  of  Isaac  W.  French  and  J.  E. 

Wild. 

The  appellants,  upon  the  argument  in  this  court  aban- 
doned every  objection  which  they  had  set  up  against  the 
proceedings  in  the  district  court,  except  the  plea  of  the  stat- 
ute of  limitations.  They  claim  that  inasmuch  as  more  than 
five  years  had  elapsed  from  the  date  of  the  notes  given  by 
French  to  Rogers  before  suit  was  brought  on  them,  that  the 
statute,  if  pleaded,  would  become  a  bar  to  a  recovery  upon 
them,  and  that  a  failure  to  bring  a  suit  on  the  notes,  or  to 
institute  proceedings  to  foreclose  the  mortgage,  it  would 
only  be  necessary  to  plead  the  statute  to  defeat  a  recovery 
on  either  the  notes  or  on  the  mortgage,  because  they  allege 
that  the  statute  runs  against  the  mortgage  as  well  as  against 
the  notes.  And  that  the  judgment  creditors  had  such  an 
interest  as  would  justify  and  empower  the  judgment  cred- 
itors to  plead  the  statute  in  bar  of  the  rights  of  the  mort- 
gagee to  recover. 

From  the  above  statement  in  this  case  I  am  relieved  from 
the  duty  of  any  extended  labor  in  disposing  of  the  questions 
raised,  and  will  content  myself  with  saying  that,  in  my 
opinion,  no  matter  whether  the  statute  might  be  pleaded 
against  a  recovery  on  the  notes  or  not,  the  mortgagee  cer- 
tainly has  an  equitable  right  to  recover  on  his  mortgage, 
and  I  am  supported  in  this  view  by  ample  authority,  the 
case  of  Sparks  v.  Pico,  found  in  1  McAllister  C.  C.  Rep.  479, 
cited  in  Angell  on  Lim.  87,  note  5,  where  this  language  is 
used :  "  But  if  action  was  barred  by  the  statute  of  limita- 
tions, nevertheless  the  foreclosure  of  the  mortgage  may  be 
proceeded  with,  at  any  time  within  the  period  of  twenty 
years,  by  suit  in  equity." 

The  same  doctrine  is  held  in  the  case  of  Longivortli  v.  Tay- 
lor, 2  Superior  Court  of  Ohio,  cited  in  Seney's  Code,  13, 
note  49.  This  is  the  universal  doctrine,  unless  it  is  differ- 
ently provided  for  by  statute.  So  that  I  have  no  doubt  as 
to  the  right  of  the  mortgagee  to  foreclose,  notwithstanding 
the  fact  that  the  notes  are  barred,  should  the  statute  be  plead- 


March,  1877.]  WILD  v.  STEPHENS.  375 

Opinion  of  the  Court — Fisher,  C.  J. 

ed.  The  statute  of  limitations,  however,  is  a  personal  privi- 
lege, but  is  only  a  privilege,  and  a  debtor  is  not  compelled 
to  set  it  up,  even  though  the  notes  may  have  run  for  twenty 
years,  and  even  though  that  privilege  attaches  to  the  mort- 
gage as  well  as  to  the  notes,  and  while  the  mortgagor,  in  that 
case,  has  the  right  to  plead  the  statute,  if  he  fails  to  do  so  the 
mortgagee  and  payee  of  the  notes  may  proceed  to  foreclose 
or  collect  by  suit  on  the  notes. 

A  subsequent  judgment  creditor  undoubtedly  has  the 
right  to  plead  the  statute  of  limitation  so  as  to  defeat  a 
prior  incumbrance,  if  he  is  placed  in  a  position  to  do  so. 
But  before  he  can  set  up  such  a  plea  he  must  occupy  a 
position  freed  from  all  doubt  on  the  question.  How  then 
do  the  parties  to  this  action  stand  ?  I  pass  over  the  judg- 
ment obtained  by  Francis  M.  Babcock  and  John  Babcock, 
partners  as  Babcock  &  Co.,  because  I  find  that  they  are 
not  contestants,  but  find  that  Thomas  W.  Babcock  and 
John  Babcock  have  some  how  got  their  names  before  this 
court.  I  therefore  dismiss  them  and  proceed  to  show  that 
John  Stephens  is  not  in  a  position  to  plead  the  statute  of 
limitations.  John  Stephens  recovered  a  judgment  against 
Adams,  Green  &  Co.,  and  it  is  admitted  that  Isaac  W. 
French  was  a  member  of  that  firm.  But  before  Stephens 
can  interfere  with  the  individual  interests  of  French  as  a 
member  of  the  firm,  he  must  show  affirmatively  that  he  has 
exhausted  his  remedy  against  the  firm.  And  after  he  has 
done  so,  section  833  of  the  code  of  civil  procedure  of  1869 
of  Wyoming  Territory  provides  that :  "  If  the  plaintiff  in 
any  judgment  rendered  against  any  company  or  partnership 
shall  seek  to  charge  the  individual  property  of  persons 
composing  the  firm,  it  shall  be  lawful  for  him  to  file  a  bill 
in  chancery  against  the  several  members  thereof,  setting 
forth  his  judgment  and  the  insufficiency  of  the  partnership 
property  to  satisfy  the  same,  and  have  a  decree  for  the  debt 
and  an  award  of  execution  against  all  such  persons  or  any ' 
of  them  as  may  appear  to  have  been  members  of  such  com- 
pany, association  or  firm. 


376  WILD  v.  STEPHENS.  [Sup.  Ct. 

Opinion  of  Thomas,  J.,  dissenting. 

Now  if  it  is  lawful  for  the  judgment  creditor  to  proceed  in 
the  way  pointed  out  by  this  section,  surely  it  is  unlawful  for 
him  to  proceed  against  the  individual  members  of  a  firm  in 
any  other  way.  Mr.  Stephens  having  failed  to  pursue  his 
remedy  in  the  way  provided  by  law,  I  think  his  relation  to 
the  decree  of  Wild  in  foreclosing  the  mortgage  is  too  remote 
to  give  him  any  standing  in  this  court. 

The  proceedings  in  the  court  below  are  affirmed. 

By  THOMAS,  J.,  dissenting.  Appeal  by  John  Stephens 
and  Babcock  &  Co.  from  a  decree  entered  in  the  first  district 
court  in  favor  of  complainant  at  the  May  term,  1875.  The 
defendants,  French,  Rogers  and  Nuckolls  do  not  join  in  the 
appeal. 

A  bill  in  chancery  was  filed  by  said  complainant  to  fore- 
close a  mortgage  executed  by  French  in  1869  to  secure  the 
payment  of  certain  notes  therein  named.  French  made 
default ;  but  the  defendants,  John  Stephens  and  Babcock  & 
Co.,  having  obtained  judgments  against  French,  subsequent 
to  the  execution  of  the  mortgage,  made  defense  as  sub- 
sequent incumbrancers  by  setting  up  the  statute  of  limita- 
tions, with  alleged  defects  in  the  mortgage  and  its  record, 
and  by  cross-bill  prayed  affirmative  relief,  viz  :  the  cancel- 
lation of  the  mortgage  and  a  decree  of  priority  for  their 
liens  over  that  of  the  mortgage.  Upon  the  argument  of  the 
cause  in  this  court  the  only  question  referred  to  by  counsel 
was  the  effect  of  the  statute  of  limitations  and  the  right  of 
the  appellants  to  plead  the  same,  but  the  questions  as  to 
the  alleged  error  in  the  mortgage  and  otherwise  were  raised 
in  the  briefs  submitted.  An  amended  complaint  was  filed 
by  the  plaintiff  making  the  appellants  herein  additional 
defendants.  It  is  claimed  by  the  appellees  that  this  was 
done  upon  the  application  of  the  appellants ;  but  nothing  is 
found  in  the  case  before  us  to  show  it.  It  appears  by  the 
records  of  the  district  court  to  which  reference  is  made  in 
the  record  in  question,  that  executions  have  been  issued 


March,  1877.]          WILD  v.  STEPHENS.  377 

Opinion  of  Thomas,  J.,  dissenting. 

upqn  the  jy.dgm.en.ts  obtained  by  the  appellants  and  re- 
turned wholly  unsatisfied. 

I  believe  that  from  an  examination  of  said  record  that  the 
Decision  pf  the  district  cpu^t  should  be  reversed  upon  at 
least  two  very  material  points.  The  first  is,  that  the  stat- 
utes of  this  territory  settle  for  us  the  law  of  limitations  of 
actions,  and  consequently  a  very  large  number  of  author- 
ities cited,  which  niight  be  applicable  elsewhere,  are  not 
pertinent  to  this  case.  The  laws  of  Wyoming,  for  the  year 
1869  (see  p.  510,  sec.  19),  under  the  head  of  limitations, 
read  as  follows :  "  Within  five  years  ;  an  action  upon  a 
specialty,  or  any  agreement,  contract  or  promise  in  writing, 
or  on  a  foreign  judgment." 

It  will  be  seen  that  this  differs  materially  from  the  stat- 
utes of  most  states,  which  provide  that  an  action  may  be 
brought  upon  an  instrument  under  seal  within  twenty  or 
twenty-one  years  ;  while  the  legislature  of  this  territory  for 
1873  materially  changed  and  modified  our  statute  of  lim^ta- 
tions  ;  that  act  contains  a  broad  saving  clause  to  the  effect 
that  it  shall  not  apply  to  notes  and  instruments  previously 
executed.  Consequently,  the  statement  in  the  brief  of  the 
appellee,  that  this  case  comes  within  the  provisions  of  the 
act  of  1873,  is  incorrect,  for  it  does  fall  within  the  provi- 
sions of  the  act  of  1869,  hereinbefore  quoted.  It  therefore 
seems  unnecessary  to  consider  the  question  upon  which  the 
appellee  placed  very  great  importance  in  his  brief  and  upon 
the  argument — that  is,  whether  a  mortgage,  being  an  in- 
strument under  seal,  executed  to  secure  the  payment  of  cer- 
tain notes,  can  be  foreclosed  when  the  notes  to  secure  which 
it  was  given  are  conceded  to  be  barred  under  said  statute, 
if  the  statute  is  plead  to  such  foreclosure.  Although  this  is 
extensively  discussed  in  the  opinion  of  the  majority  of  the 
court,  I  am  of  the  opinion  that  it  is  entirely  irrelevant,  as 
the  statutes  before  referred  to  say  in  effect  that  an  action 
either  upon  a  note  or  a  mortgage,  being  even  under  seal, 
shall  be  commenced  within  five  years,  etc.  From  the  pro- 
visions of  the  law  of  1873,  this  is  certainly  the  rule  that 


378  WILD  v.  STEPHENS.  [Sup.  Ct. 

Opinion  of  Thomas,  J.,  dissenting. 

governs   in  this   case,  and   both   the   notes   given  and   the 
mortgage  in  issue  are  barred  by  the  statute. 

Are  the  appellants,  as  judgment  creditors  of  I.  W.  French, 
entitled  to  plead  the  statute  of  limitations  ?  It  is  urged  by 
the  appellee  that  they  are  not : 

1.  For  the  reason  that  at  the  time  of  recovering  the  judg- 
ments, Wild,  and  not  French,  was  the  legal  owner  of  the 
real  estate  mentioned,  and  that  said  judgments  were  not  a 
lien  upon  it,  as  French  then  was  the  owner  only  of  the 
equity  of  redemption ; 

2.  That  they  were  not  personal  judgments  against  French  ; 

3.  That  the  appellants  should  have  at  least  exhausted 
their  remedies  against  the  copartnership  property  of  Adams, 
Green  &  Co.,  before  proceeding  against  the  individual  prop- 
erty of  French. 

I  am  of  the  opinion  that  the  laws  of  the  territory  (see 
laws  of  1869,  p.  594,  sec.  446),  furnish  a  complete  answer 
to  the  first  objection,  and  if  not,  that  the  rules  of  common 
law  are :  See  Freeman  on  Judgts.  sec.  339,  and  many  other 
authorities  cited  in  the  briefs  of  appellant. 

In  reference  to  the  second,  it  appears,  from  the  records 
of  the  two  judgments,  that  French  was  personally  sued  and 
personally  served,  consequently  those  judgments  would  be 
good  against  his  individual  property,  as  well  as  against  the 
property  of  the  copartnership. 

As  to  the  last  objection,  the  records,  before  referred  to, 
show  that  executions  have  been  issued  in  more  than  one 
instance  against  the  copartnership  property  of  Adams, 
Green  &  Co.,  and  returned  wholly  unsatisfied,  but  I  am  of 
the  opinion  that  even  this  was  not  required ;  that  the  judg- 
ments were  personal  judgments  against  said  I.  W.  French, 
as  before  stated ;  and  that  it  was  not  incumbent  upon  the 
appellants  to  show  that  they  had  exhausted  any  remedies 
against  the  copartnership  property. 

I  am  unable  to  see  that  section  833,  of  the  code  of  civil 
procedure,  as  cited  in  the  opinion  of  this  court,  has  any 
bearing  upon  this  case  whatever,  and  should  be  considered 


March,  1877.]  WILD  v.  STEPHENS.  379 

Opinion  of  Thomas,  J.,  dissenting. 

only  in  reference  to  section  830.  Further,  the  appellants, 
being  subsequent  incumbrancers,  had  undoubtedly  the 
right  to  plead  the  statute  as  against  the  complainant:  See 
Angel  on  Limitations,  pp.  280,  301  and  302,  under  notes  1, 
2  and  4  respectively ;  also  4  Ohio  St.  464  ;  and  18  Cal.  482. 
But  the  most  complete  answer  to  these  various  objections 
is  the  fact  that  the  pleadings  herein,  taken  together,  fully 
admit  the  rights  of  the  appellants,  as  claimed  by  them- 
selves. The  complainant  voluntarily  sets  them  up  in  his 
bill.  These  defendants  do  likewise  in  their  answer.  No 
denial  whatever,  is  made,  and  no  issue  raised  thereupon 
whatever.  It  further  appears  to  me  that  in  the  examination 
of  these  pleadings,  we  find  a  full  answer  to  the  objection 
contained  in  the  opinion  filed  in  this  court,  as  to  the  mis- 
nomer of  certain  parties  appellants  mentioned  in  the  Bab- 
cock  judgment.  The  error,  if  any  there  be,  was  made  by 
the  complainant,  and  under  the  general  rules  he  should  not 
be  entitled  to  receive  any  benefit  therefrom. 

In  concluding  the  case  in  the  district  court,  and  upon  ap- 
peal from  said  court,  the  title  first  set  forth  in  the  com- 
plainant's bill  of  complaint  has  simply  been  followed,  and 
no  exceptions  whatever  were  taken  thereto.  I  cannot  agree 
with  another  portion  of  that  opinion,  where  it  states  that 
the  record  does  not  show  how  the  court  obtained  jurisdic- 
tion, but  adds  that  the  parties  were  present,  appeared  in  court 
and  agreed  to  proceed  with  the  trial  of  the  cause.  Appear- 
ance in  open  court  and  consent  by  all  parties  to  proceed  to 
trial,  should  certainly  confer  jurisdiction. 

The  bill  of  the  complainant  should  have  been  dismissed, 
and  the  prayer  contained  in  the  cross-bill  granted. 


380  FEIN  v.  TERRITORY  OF  WYOMING.      [Sup.  Ct 

Opinion  of  the  Court— Fisher,  C.  J. 


FEIN  v.  THE  TERRITORY  OF  WYOMING. 

INDICTMENT— TEUMS  USED. — Under  an  indictment  for  willfully,  ma- 
liciously, etc.,  killing  a  horse :  field,  that  testimony  tending  to  prove 
the  killing  of  a  geldjpg  was  properly  admitted. 

CHAKG^  OF  THE  COUKT.— Malice  may  be  presumed  against  the  defend- 
ant on  trial  in  a  criminal  action  to  such  an  extent  that  it  will,  un- 
der certain  circumstances,  shift  the  burden  of  proof  from  the 
prosecution  to  the  defense  upon  that  particular  question. 

ERROR  to  the  Second  District  Court  for  Albany  County. 

A  full  statement  of  th^e  case  is  contained  in  the  opinion  of 
the  court. 

Brown  and  Broclmiay,  for  the  plaintiff  in  error,  cited :  Re- 
vised Stat.  278 ;  Bishop  Stat.  Crim.  248 ;  33  Texas  R.  342 ; 
1  Greenl.  on  Ev.  461 ;  Squire*  v.  The  Village  of  Neenah,  24 
Wis.  493;  1  Bish.  Crim.  Pro.  sees.  1056,  1058;  State  v. 
Enslow,  10  Iowa,  115  ;  7  U.  S.  Dig.  400. 

0.  W.  Bramel,  for  defendant  in  error,  cited  :  Revised  Stat. 
278  ;  People  v.  Moody,  5  Park,  C.  R.  568  ;  20  U.  S.  Dig.  385  ; 
23  Id.  39  ;  1  Bish.  Crim.  Pro.  690-4 ;  1  Bish.  Crim.  Law, 
437  ;  1  Archibald's  Crim.  Pr.  850 ;  1  Bouvier,  590. 

By  the  Court,  FISHER,  C.  J. :  This  was  an  action  brought 
to  this  court  by  writ  of  error  from  Albany  county,  second 
judicial  district.  The  facts  are,  tjiat  at  the  August  term  of 
the  district  court  in  and  for  Albany  county,  John  J.  Fein 
was  indicted  for  "  unlawfully,  wantonly  and  maliciously " 
killing  one  horse,  the  property  of  one  Patrick  Doran. 

The  case  was  tried  and  the  defendant  found  guilty  as 
charged.  A  motion  was  filed  for  a  new  trial,  which,  after 
argument,  was  overruled,  and  the  case  brought  here  for  re- 
view. The  plaintiff  in  error  assigns  the  following  errors  to 
the  rulings  of  the  court  below : 

1.  That  the  court  below  erred  in  refusing  to  quash  the 
said  indictment,  and  in   overruling  the  motion  to  quash  said 
indictment  made  by  defendant. 


March,  1877.]  FEIN  v.  TERRITORY  OF  WYOMING.  381 

Opinion  of  the  Cotfrt— -Fiiihei1,  C.  J. 

2.  That  the  said  C6titrt  erred, 'dh  the  trial  of  the 'Cause,  in 
admitting  the  evidence  of  Patrick  Down  and  N.  K.  Boswell 
and  other  witnesses  foi*  the  prosecution,  to  which  the  said 
John  J.  Fein  (now  plaintiff  in  error)  objected. 

3.  That  said  court  erred,  in  the  trial  of  said  eatise,  in  re- 
fusing, on  motion  of  defendant,   (now  plaintiff  in  error,)  to 
strike  out  all  evidence  before  this  time  gone  to  the  jury  in 
this  cause  tending  to  show  the  animal  killed  to  be  a  "  horse," 
it  having  now  been  shown  by  the  evidence  of  prosecuting 
witness,   P.  Doran,  that  the  said  animal  referred  to  in  the 
indictment  as  having1  been  killed  by  defendant  to  have  been, 
at  the  time  of  killing,  a  "  gelding." 

4.  That  the  court  erred,  in  the  trial  of  this  cause,  in  ad- 
mitting  the   evidence   of   P.    Doran,    N.  K.  Boswell,  Mrs. 
Kean,    and   others,    witnesses    for   prosecution,  over   objec- 
tions of  defendant,  as  to  the  killing  and  condition  of  a  geld- 
ing, when  the  indictment  charges,  if  anything,  the  killing 
of  a  "horse." 

5.  That  the  court  efred,  in  the  trial  of  this  cause,  in  re- 
fusing to  charge  the  jury,  at  the  close  of  the  evidence  for 
the  prosecution,  as  requested  by  defendant,  to  return  a  ver- 
dict, then  and  there,  of  "  not  guilty,"  on  the  ground  that 
there  was  no  evidence  before  the  jury  tending  to  criminate 
the  defendant  or  to  sustain  the  indictment. 

6.  The  court  erred,  in  the  trial  of  this  cause,  in  refusing 
to   admit   the   testimony  and  evidence   of  Barbara  Fein,  a 
witness  regularly  sworn  for  the  defense,  and  in  refusing  to 
permit  the  said  Barbara  Fein  to  testify  in  said  cause,  after 
she  had  been  sworn  regularly  as  a  witness   for  defense  and 
regularly  called  to  the  stand  as  such  witness  to  testify  on 
behalf  of  defendant. 

7.  That   the   court   erred,  in  the  trial  of   this  cause,   in 
charging  the  jury :  "  the  jury  may  infer  malice,  unless  the 
defendant  proves  the  contrary  to  their  satisfaction." 

8.  That   the  court  erred,   in  the   trial  of   this  cause,   in 
charging  the  jury:   "should  you  find  that  the  defendant  in- 
tentionally shot  and  killed  the  horse  in  question,  knowing 


382  FEIN  v.  TERRITORY  OF  WYOMING.      [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

it  to  be  Doran's  horse,  it  shifts  the  burden  of  proof  to  the 
side  of  defendant." 

9.  That  the  court  erred,  in  the  trial  of  this  cause,  in  fail- 
ing and  refusing  to  charge  the  jury  the  law  applicable  to 
the  case,  as  it  is  the  duty  of  the  court  to  do,  under  the  laws 
of  this  territory. 

10.  That  the  court  erred,  in  the  trial  of  this  cause,  in  this, 
to  wit,  that  the  said  judgment  was  given  for  the  territory  of 
Wyoming,  and  against  this  defendant,  John  J.  Fein,  (now 
plaintiff  in  error,)  when  it  ought  to  have  been  given  in  favor 
of  said  defendant,  according  to  the  law  of  the  land. 

11.  That  the  court  erred  in  the  trial  of  this  cause  in. re- 
fusing defendant's   motion  for  a  new  trial,  and  in  overruling 
defendant's  motion  for  a  new  trial. 

12.  That  the  court  erred  in  the  trial  of  this  cause,  in  this, 
to  wit,  that  the  said  judgment  was  given  for  the  territory  of 
Wyoming   and   against  the    defendant,  John  J.  Fein,  now 
plaintiff  in  error,  when  it  ought  to  have  been  given  in  favor 
of  said  defendant,  according  to  the  law  of  the  land. 

The  first  error  complained  of  is  the  failure  of -the  court  to 
quash  the  indictment  for  several  reasons  set  forth  in  the 
record,  that  it  is  ambiguous  and  that  it  is  not  indorsed  by 
the  prosecuting  witness,  that  it  does  not  properly  describe 
the  wounds,  nor  the  manner  in  which  they  were  inflicted, 
etc.  With  regard  to  the  ambiguity  of  the  indictment,  we 
fail  to  discover  wherein  it  consists ;  the  want  of  indorse- 
ment by  the  prosecuting  witness  is  of  such  a  novel  character 
that  it  is  enough  to  say  that  we  know  of  no  law,  either  com- 
mon, statutory,  natural  or  divine,  that  requires  any  such 
thing  to  be  done  by  such  prosecutor.  It  is  true  that  the 
criminal  procedure  law  of  this  territory  provides  that  the 
name  of  the  prosecuting  witness  should  be  indorsed  on  the 
back  of  every  indictment  for  a  misdemeanor,  but  as  no  such 
error  as  to  the  want  of  such  an  indorsement  is  complained 
of,  we  content  ourselves  by  simply  remarking  the  matter 
complained  of  does  not  constitute  error.  The  other  matters 
complained  of  under  the  first  alleged  error  are  deserving  of 


March,  1877.]  FEIN  v.  TERRITORY  OF  WYOMING.  383 

Opinion  of  the  Court — Fisher,  C.  J. 

but  little  attention,  inasmuch  as  the  indictment  clearly 
charges  that  the  defendant,  on  the  day  named,  at  the 
county,  etc.,  did  unlawfully,  wantonly  and  maliciously  kill 
and  destroy  a  certain  horse,  of  the  value,  etc.,  the  prop- 
erty of  Patrick  Doran,  by  shooting  said  horse  in  the  side, 
and  by  reason  whereof  the  said  horse  died.  Now  it  is  true 
that  the  indictment  does  not  say  whether  the  said  defend- 
ant used  a  cannon,  rifle,  shot-gun  or  pistol,  but  it  does  say 
that  he  shot  the  said  horse  so  that  he  died  from  the  said 
wound,  and  we  think  there  is  no  such  ambiguity  in  the 
charge  as  the  defendant  can  complain  of,  especially  under 
the  provisions  of  our  statute  found  in  the  compiled  laws  of 
Wyoming,  sec.  84,  p.  149,  where,  after  enumerating  many 
things  which  may  be  omitted  or  added  to  an  indictment, 
making  the  omissions  or  additions  much  fuller  or  broader 
than  is  complained  of  here,  concludes  with  these  significant 
words  :  "  Nor  for  want  of  the  averment  of  any  matter  not 
necessary  to  be  proved ;  nor  for  any  other  defect  or  imper- 
fection which  does  not  tend  to  the  prejudice  of  the  substan- 
tial rights  of  the  defendant  upon  the  merits."  This  and  the 
previous  parts  of  the  section  completely  cover  the  defects 
complained  of,  even  if  any  such  defects  existed,  which  we 
clearly  think  do  not. 

The  second  error  complained  of  is  so  indefinite  that  we 
do  not  see  how  to  pass  upon  it.  It  merely  states  that  the 
court  below  erred  in  admitting  the  testimony  of  the  wit- 
nesses, without  stating  any  reason,  so  that  we  are  left  to 
presume  that  the  only  reason  why  the  testimony  is  com- 
plained of  is  that  stated  in  the  first  objection  :  if  so,  then  it 
is  answered  above. 

The  third  objection  relied  upon  by  the  plaintiff  in  error, 
as  the  sheet-anchor  of  their  case,  viz.,  that  the  animal 
killed,  being  described  in  the  indictment  as  a  "horse, "is 
shown  by  the  evidence  to  have  been  a  "gelding."  The 
counsel  for  the  plaintiff  in  error  cite  in  favor  of  such  a  dis- 
tinction a  case  decided  in  Texas,  and  found  in  31  Texas,  pp. 
571,  572  This  case  fully  supports  the  theory  that  where 


384  Fftor  v.  TERRITORY  OF  WYOMING.      [Sup.  Ct. 

Opinion  of  the  Court — Fisher,  C.  J. 

under  a  statute  similar  to  ours,  the  defendant  was  indicted 
for  the  larceny  of  a  "horse,"  and  the  proof  showing  that  the 
animal  stolen  was  a  "gelding,"  it  was  held  that  the  evi- 
dence did  not  sustain  the  indictment,  but  this  is  the  only 
case  we  have  been  able  to  find  supporting  this  view.  It  is 
true  that  at  an  early  day  this  doctrine  was  held  in  England ; 
but  as  early  as  1838  the  majority  of  the  judges  held  that  an 
indictment  charging  one  with  the  larceny  of  a  sheep,  under 
a  similar  statute,  without  stating  the  sex,  and  the  proof 
showing  it  to  have  been  a  "  ewe,"  the  defendant  was  rightly 
convicted,  and  this  doctrine  has  been'  fully  sustained  ever 
since,  because  sheep,  being  a  generic  term,  covers  all  the 
different  species  of  the  sheep-  family ;  so  "  horse,"  being  a 
generic  term,  embraces  the  whole  horse  family :  See  Bish- 
op's Statutory  Crimes,  sees.  247,  248  et  seq.  This,  taken  in 
connection  with  sec.  84  of  the  Criminal  Code  of  this  terri- 
tory, satisfies  us  that  there  is  no  such  error  shown  as  would 
justify  us  in  setting  aside  the  verdict  for  the  reasons  stated. 

The  fourth  error  complained  of  has  been  disposed  of  in 
considering  the  second  and  third. 

The  fifth  error  complained  of  is,  that  the  court  erred  in 
not  instructing  the  jury  that  there  was  no  evidence  to  con- 
vict the  defendant,  and  that  the  jury  should  return  a  ver- 
dict of  not  guilty.  Surely  this  objection  cannot  seriously 
be  contended  for.  And  the  court,  we  think,  only  discharged 
its  duty  when  it  submitted  the  case  to  the  jury  to  pass  upon 
the  facts  as  proven,  and  return  such  a  verdict  as  they  were 
justified  in  doing  from  the  facts  proven. 

The  sixth  error  complained  of  is,  that  the  court  refused 
to  permit  Barbara  Fein,  wife  of  the  defendant,  to  give  her 
evidence  for  the  defense,  after  she  had  been  sworn  to  testify. 
Neither  at  common  law,  nor  under  the  statutes  of  this  terri- 
tory, can  a  wife  or  husband  be  a  witness  for  or  against 
each  other,  except  in  certain  specified  cases,  and  there  is 
no  one  of  such  cases  covered  by  the  matters  in  issue  in  this 
case,  but  the  complaint  here  is  that  the  wife  having  been 
sworn  without  any  objection  having  been  interposed,  that 


March,  1877.]  FEIN  v.  TERRITORY  OF  WYOMING.  385 

Opinion  of  the  Court — Fisher,  C.  J. 

then  she  had  a  right  to  testify.  We  do  not  think  that  the 
mere  fact  that  Mrs.  Fein  was  sworn  (it  may  be  without  the 
knowledge  of  the  court)  gave  her  any  more  right  to  testify 
than  she  would  have  had  if  the  objection  had  been  made 
when  the  oath  was  about  to  be  administered  to  her ;  it  is 
not  the  swearing  of  a  witness  that  gives  her  or  him  a  right 
to  testify,  but  the  relation  which  the  witness  holds  to  the 
parties  to  the  action.  And  while  it  is  all  right  to  make  the 
objection  when  the  witness  is  called  to  be  sworn,  yet  no 
right  to  object  is  forfeited  by  withholding  the  objection  un- 
til the  witness  is  put  upon  the  stand ;  hence,  in  this  objec- 
tion we  can  discover  no  error. 

The  seventh  objection  is  to  the  charge  of  the  court. 
"  That  the  jury  may  infer  malice,  unless  the  defendant 
proves  the  contrary  to  their  satisfaction."  This,  it  must  be 
admitted,  is  stating  the  case  quite  strongly,  but  it  is  never- 
theless in  accordance  with  the  weight  of  authorities.  Mr. 
Russell,  in  his  elaborate  work  on  crimes,  vol.  1,  page  483, 
lays  down  the  law  to  be  that,  whenever  the  crime  is  clearly 
proven,  sufficiently  to  imply  malice,  unless  there  be  some- 
thing to  rebut  such  an  inference,  immediately  connected 
with  the  commission  of  the  crime,  that  the  burden  shifts  to 
the  defendant  to  rebut  such  an  implication.  It  is  true  that 
a  contrary  doctrine  has  been  held  in  some  cases,  but  we 
find  that  to  be  the-  views  of  the  courts  of  Massachusetts 
and  most  of  the  other  states,  and  it  has  been  the  rule  in 
this  territory  ever  since  its  formation. 

There  is  nothing  in  the  other  exceptions  which  lias  not 
been  passed  upon  in  the  examination  of  the  foregoing,  and  it 
is  therefore  unnecessary  to  refer  more  fully  to  them.  We  come 
to  the  conclusion  that  if  there  was  any  error,  such  as  would 
entitle  the  defendant  to  any  action  by  this  court,  it  is  to  be 
found  in  the  fact  that  the  jury  found  their  verdict  upon 
what  might  be  regarded  as  not  very  conclusive  evidence, 
but  they  being  the  exclusive  judges  of  the  evidence,  we  are 
not  disposed  to  trench  upon  their  prerogative,  and  hence 
the  judgment  of  the  court  below  is  affirmed. 
25 


386  McCABTENE*  v.  NATIONAL  BA^K.      [Sup.  Ct. 

» 

Opinion  of  the  Court— Blair,  J. 


MeCARTENEY  *.  WYOMING  NATIONAL  BANK. 

STKANGER  TO  CONTRACT. — It  is  well  settled  that  in  no  case  can  a 
stranger  to  'a'  contract  maintain  an  acttou  upon  it  ffr  for  the  breach 
of  it,  save  in  the  exceptional  cases  where  a  promisee  WRK  consid- 
ered merely  the  agent  of  the  stranger,  and  where  the  stranger  was 
regarded  as  the  trustee  of  the  party  to  whom  the  promise  is  made. 

EKBOft  to  the  Second  District  Court  for  Albany  County. 

A  sufficient  statement  of  the  case  is  contained  in  the 
opinion  of  .Judge  BLAIR. 

Brown  and  Brockway,  for  the'  plaintiffs  in  error,  cited  :  12 
Ohio  St:  273  ;  1  Prifs.  on  Con.  466-7  ;  37:  N.  Y.  575  ;  2  Greeiil. 
on  Er.  90  j  Putney  v.  faraham,  27  Wis.  187 ;  35  Wis.  171 ; 
2  Ohio  St:  241 ;  22  Cal.  62tf ;  37  Id.  596 ;  35  Wis.  653. 

W.  W.  CorleU,  for  the  defendant  in  error,  cited :  1  Pars, 
on  Can.  478  ;  Necker  v«  National  Bank  of  Hagerstown,  Cent. 
Law  Jour.  1875,  471 ;  Talm&ge  v.  Bell,  3  Seldeft,  .328  ;  Fmc- 
ler  v.  Sealy,  72  Penn.  461 ;  R.  Stats,  of  the  United  States, 
sec.  5136. 

By  the  Court,  BLAIR,  J. :  The  plaintiff  below,  who  is  also 
the  plaintiff  in  error  in  this  court,  filed  her  petition  in  the 
coairt  below,  setting  forth  substantially  the  following  facts  : 
That  on  the  tenth  day  of  November,  A.  D.  1874,  the  said  de- 
fendants, A.  G.  Swain  and  George  Little,  were  copartners, 
doing  business  under  the  firm  name  and  style  of  Swain  & 
Little,  at  Laramie  city,  county  of  Albany,  Wyoming  terri- 
tory, and  while  so  copartners  and  doing  business  as  afore-' 
said,  did  on  said  tenth  day  of  November,  1874,  at  said  Lar- 
amie  city  and  county  of  Albany,  and  territory  aforesaid, 
make  their  certain  promissory  note  in  writing,  dated  on  said 
day,  and  did  deliver  the  same  to  said  plaintiff,  by  which 
said  note  the  said  Swain  &  Little  did  promise  to  pay  to  the 
said  plaintiff,  or  her  order,  the  sum  of  three  hundred  and 
twenty-five  dollars,  six  months  after  the  date  thereof,  with 


March,  1877.]  MCCAHTENEY  v.  NATIONAL  KANK.  387 

Opinion  of  th»  Court— Blair,  J. 

interest  thereon  at  the  rate  of  two  pec  cent,  per  month,  pay- 
able monthly ;  that  the  plaintiff  is  still  the  owner  of  said 
note,  and  that  the  same,  nor  any  part  thereof*  has  ever 
been  paid.  The  plaintiff  further  alleges  that  before  said 
note  became  due  and  payable  the  said  firm  of  Swain  &  Lit- 
tle was  dissolved  by  mutual  consent ;  and  that  the  said 
Swain,  after  the  said  dissolution,  carried  on  the  business  in 
his  own  name,  and  did  assume  to  pay  the  indebtedness  of 
the  said  firm  of  Swain  &  Little.  The  petition  further  al- 
leges that  after  the  dissolution  of  said  firm,  to  wit,  on  the 
twenty-seventh  day  of  January,  A.  D.  1875,  the  said  Swain 
did  enter  into  a  certain  contract  with  certain  of  his  creditors 
and  the  creditors  of  Swain  &  Little,  by  the  terms  of  which 
contract  the  said  creditors  became  parties  thereto,  to  wit, 
the  defendants  in  this  action,  by  which  contract  the  said  de- 
fendants promised,  agreed  and  undertook  in  consideration 
of  the  goods>  wares  and  merchandise,  book  accounts,  notes, 
bills,  moneys,  credits  and  effects  of  the  said  A,  G.  Swain, 
which  the  said  Swain  did  on  his  part  promise  and  agree  to 
and  did  thereafter,  according  to  the  tenor  and  effect  of  said 
contract,  assign,  turn  over  and  deliver  to  said  defendant's 
creditors  or  their  agent,  to  sell  and  convert  into  money,  all 
of  said  goods,  property  and  effects  aforesaid,  and  out  of  the 
proceeds  thereof  to  pay  certain  claims,  notes,  bills  and  ac- 
counts, existing  against  the  said  Swain  &  Little  and  the  said 
A.  G.  Swain  in  full,  and  to  divide  the  residue,  pro  rata, 
among  all  the  remaining  creditors  of  said  Swain  &  Little 
and  the  said  A.  G.  Swain. 

Ttwj  petition  further  avers,  that  the  contract  mentioned 
as  aforesaid  was  signed  and  fully  executed  by  the  said  A. 
G.  Swain,  of  the  first  part,  and  by  the  Wyoming  National 
Bank,  aforesaid,  (a  corporation  duly  organized  under  the 
laws  of  the  United  States  and  doing  business  under  the 
said  .corporate  name  in  the  county  and  territory  aforesaid), 
and  by  divers  other  creditors  of  said  Swain  &  Little  and 
the  said  A.  G.  Swain,  of  the  second  part.  The  petition 
further  avers,  that  all  of  the  parties  of  the  second  part  who 


388  McCARTENEY  V.  NATIONAL  BANK.         [Sup.  Ct. 

Opinion  of  the  Court — Blair,  J, 

signed  said  agreement  or  contract  aforesaid,  by  reason  of 
the  terms  thereof  did  promise,  agree  and  undertake  to  pay, 
or  cause  to  be  paid,  out  of  the  proceeds  of  the  goods  and 
effects  aforesaid  the  amount  of  said  plaintiff's  claim,  with 
all  interest  due  thereon.  That  the  plaintiff  wholly  relied  on 
the  good  faith  of  the  said  contract  and  the  stipulations 
therein  contained,  and  accepted  the  same  in  good  faith  as 
security  for  the  payment  of  her  said  claim,  and  so  relying, 
she  did  not  take  any  steps  to  or  attempt  to  collect  the  same 
of  the  said  Swain  &  Little.  That  at  the  time  the  said 
contract  was  entered  into,  the  said  Swain  had  sufficient 
property  out  of  which  she  could  have  made  her  entire  claim. 
The  petition  further  alleges,  that  immediately  after  the 
execution  of  the  contract  aforesaid,  to  wit,  on  or  about  the 
twenty-seventh  day  of  January,  A.  D.  1875,  according  to  one 
of  the  provisions  of  said  contract,  one  N.  L.  Andrews  took 
nominal  possession  of  the  store  of  said  Swain  as  the  agent 
of  the  defendants,  and  did  remain  in  nominal  possession  of 
all  the  goods,  wares  and  merchandise  therein  for  the  space 
of  thirty  days  ;  that  said  Swain  failed  during  that  time  to 
effect  a  compromise  with  his  said  creditors  and  the  creditors 
of  Swain  and  Little,  and  thereupon  turned  over  to  said 
Andrews,  as  the  agent  of  .said  defendants,  all  the  goods 
wares,  merchandise,  moneys,  credits,  book  accounts,  and 

effects  of   said  A.   G.  Swain,  amounting   to dollars ; 

and  that  said  Andrews  took  possession  of  the  same  as  the 
agent  of  the  creditors  of  defendants ;  and  further,  that  the 
effects  so  turned  over  to  said  Andrews  were  more  than  suffi- 
cient to  pay  all  the  preferred  creditors  mentioned  in  said 
contract,  leaving  a  large  sum  to  be  divided  among  other 
creditors  of  said  Swain  &  Little  ;  that  the  effects  thus  turned 
over  have  long  since  been  converted  into  money  and  divided 
among  several  creditors  of  the  said  Swain  and  Swain  el- 
Little  ;  but  that  no  part  of  the  claim  of  the  plaintiff  has  ever 
been  paid,  either  to  her  or  to  any  one  for  her,  by  the  said 
defendants.  A  copy  of  the  note  and  contract  aforesaid  are 
filed  with  the  plaintiff's  petition. 


March,  1877.]  McCARTENEY  v.  NATIONAL  BANK.  389 

Opinion  of  the  Court — Blair,  J. 

It  appears  from  the  record  in  this  case  that  the  Wyoming 
National  Bank,  by  its  attorney,  separately  appeared  in  the 
court  below  and  filed  a  demurrer  to  the  plaintiff's  petition, 
and  assigned  three  causes  of  demurrer,  viz : 

1.  That  there  is  a  misjoinder  of  parties  defendants. 

2.  That  several  causes  of  action    have  been  improperly 
united. 

3.  That  the  petition  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action  against  the  defendants. 

The  court  below  sustained  the  demurrer  to  the  plaintiff's 
petition,  and  this  case  is  brought  here  for  review.  We  will 
examine  the  first  cause  of  demurrer  assigned,  and  inquire, 
first,  is  there  a  misjoinder  of  parties  defendants  in  this 
action?  It  is  important  to  bear  in  mind  that  there  is  an 
action  of  assumpsit  brought  by  the  plaintiff  to  recover  the 
amount  of  a  note  executed,  not  by  the  defendant,  but  by 
the  firm  of  Swain  &  Little,  to  the  plaintiff.  Like  all  actions 
of  assumpsit,  it  is  based  upon  -a  promise.  It  is  alleged  in 
the  plaintiff's  petition  that  according  to  the  terms  of  a  cer- 
tain agreement  entered  into  between  A.  G.  Swain,  of  the 
first  part,  and  the  Wyoming  National  Bank  and  other  cred- 
itors of  Swain  &  Little,  and  A.  G.  Swain,  of  the  second 
part,  one  Andrews  should  convert  certain  goods,  wares  and 
merchandise,  the  property  of  the  said  A.  G.  Swain,  into 
cash,  and  out  of  the  proceeds  thereof  pay  and  discharge  the 
note  held  by  the  plaintiff  against  the  firm  of  Swain  &  Little. 
The  contract  filed  with  the  plaintiff's  petition  shows  con- 
clusively, if  it  shows  anything,  that  it  was  a  contract  entered 
into  by  Swain,  a  party  of  the  first  part,  and  the  bank  and 
other  creditors  of  A.  G.  Swain  and  Swain  &  Little,  as  par- 
ties of  the  second  part ;  and  if  any  promise  was  made  to  pay 
the  debt  of  the  plaintiff,  it  was  made  by  the  parties  of  the 
second  part  to  Swain,  not  by  Swain.  We  are,  therefore,  of 
opinion  that  there  is  a  misjoinder  of  parties  defendants  in 
this  action,  in  making  Swain  a  party  defendant ;  and  where 
such  is  the  case,  under  the  compiled  laws  of  this  territory 
a  demurrer  will  lie :  See  Compiled  Laws,  44,  sec.  85. 


390  McCARTENEY  V.  NATIONAL  BANK.        [Slip.  Gt. 

Opinion  of  the  Court — Blair,  J. 

The  second  cause  of  error  assigned,  having  been  aban- 
doned by  counsel  of  defendant  in  error  in  the  argument  in 
this  court,  it  will  not  be  considered.  It  would  hardly  seem 
possible  that  the  plaintiff  in  error  could  claim  that  the  sup- 
posed promise  or  assumpsit  upon  which  this  action  is 
founded,  was  made  to  her  either  directly  or  indirectly ;  yet 
the  averment  in  the  petition  of  the  plaintiff  "  that  she  relied 
wholly  and  entirely  on  the  good  faith  of  the  said  eon- 
tract  and  agreement  therein  contained,  and  accepted  the 
same  in  good  faith  as  security  for  the  payment  of  the  said 
sum  of  money  to  her ;  and  relying  upon  said  contract  as 
aforesaid  the  said  plaintiff  did  not  take  any  steps  to,  or  at- 
tempt to  collect  said  note  from  the  makers"  would  seem  to 
imply  that  she  did  «o  regard  it.  Grant  for  the  sake  of 
argument  that  this  averment  is  true  :  Does  it  state  a  cause 
of  action  in  any  view  of  the  case,  in  favor  of  the  plaintiff, 
and  against  the  defendant  ?  We  think  not ;  and  why  ?  Be- 
cause there  is  no  contract  stated  between  the  plaintiff  and 
defendant.  To  establish  a  contract  between  the  plaintiff 
and  defendant  there  must  appear  that  there  were  reciprocal 
or  mutual  obligations  between  the  parties;  not  merely  that 
the  plaintiff  remained  passive  at  the  time  the  contract 
referred  to  was  entered  into,  but  on  the  contrary,  it  must 
clearly  appear  that  she  bound  herself  to  do  or  not  to  do 
some  given  thing.  If  the  plaintiff  accepted  the  contract  as 
alleged  in  her  petition,  she  did  so  of  her  own  volition,  as 
it  is  nowhere  alleged  or  appears  that  the  defendant  request- 
ed her  acceptance  of  the  said  contract.  The  proposition 
will  hardly  be  questioned  that  all  contracts  to  be  legal 
between  parties,  the  obligations  must  be  mutual  and  bind- 
ing upon  both.  If  both  parties  are  not  bound  there  is  no 
contract. 

Did  the  plaintiff  forebear  to  proceed  to  collect  by  law  the 
amount  of  her  claim  against  Swain  and  Little,  as  she  alleges 
she  did?  If  so  that  was  her  own  concern  ;  as  she  was  under 
no  obligation  to  the  defendant  not  to  do  so.  We  are  unable 
to  see  that  there  is  any  consideration  between  the  plaintiff 


March,  1877.]  MCCARTENEY  v.  NATIONAL  BANK.  391 

opinion  of  the  Court — Blair,  J. 

and  defendant  upon  which  to  base  a  promise  in  law.  That 
there  must  be  a  consideration  of  some  sort  is  admitted.  It 
need  not  necessarily  be  a  moneyed  consideration.  If  the 
consideration  of  a  contract  be  a  detriment  to  the  promisee 
such  detriment  must  accrue  at  the  request  of  the  promisor: 
Par.  on  Con.  5  Ed.  431,  448,  450. 

Counsel  for  the  plaintiff  in  error,  in  their  argument  before 
this  court,  also  assumed  the  position  that,  according  to  the 
legal  effect  of  the  agreement  heretofore  referred  to,  the 
defendant  in  error  agreed  with  or  promised  Swain  to  pay 
the  claim  of  the  plaintiff.  We  find  it  extremely  difficult  to 
see  upon  what  principle  such  an  assumption  can  be  sus- 
tained. The  contract  upon  which  such  a  promise  is  based 
forbids  such  a  conclusion.  It  is  well  settled  that  in  no  case 
can  a  stranger  to  a  contract  maintain  an  action  upon  it,  or 
for  the  breach  of  it ;  save  in  the  exceptional  cases  where 
the  promisee  was  considered  merely  the  agent  for  the 
stranger  and  where  the  stranger  was  regarded  as  the  trustee 
of  the  party  to  whom  the  promise  is  made :  Par.  on  Con. 
5  Ed.  466-8. 

At  all  events  as  the  promises  in  this  case  alleged  were  un- 
der seal,  then  all  the  authorities  seem  to  agree  that  a 
stranger  cannot  maintain  any  action  for  a  breach  of  the 
promises :  Par.  on  Con.  5  Ed.  475,  478. 

It  seems  to  the  court  that  there  is  no  error  in  the  judg- 
ment of  the  court  below,  and  that  it  should  be  affirmed. 

Judgment  affirmed. 


REPORTS  OF  CASES 


DETERMINED  IN 


THE   SUPREME   COURT 

OF 

WYOMING  TERRITORY. 
MARCH  TERM,  1878. 


DEAR  v.  TRACY. 

EVIDENCE — BOOKS  OF  ACCOUNT. — Where  a  witness  testified  of  his  own 
knowledge  that  goods  were  delivered,  and  that  the  entries  therefor 
were  made  at  the  same  time  by  his  clerks  in  his  books  of  account: 
Held,  that  the  delivery  and  charges  being  contemporaneous,  it  was 
immaterial  whether  the  testimony  of  such  clerks  was  introduced  or 
not,  as  their  testimony  would  only  go  to  the  weight  of  the  evidence. 

ERROK  to  the  First  District  Court  for  Laramie  County. 

A  sufficient  statement  of  the  case  appears  in  the  opinion  of 
the  court. 

E.  P.  Johnson,  for  plaintiff  in  error,  cited :  Sec.  320 
Code  Civil  Pro. ;  Seney's  Code,  sees.  288  and  435  to  441 ; 
16  Ohio  St.  273  ;  22  Id.  208. 

W.  R.  Steele  and  Wm.  H.  Miller,  for  defendant  in  error, 
cited  :  1  Greenleaf  (Redfield  ed.),  sees.  117,  118, 120  ;  Laws 
of  Wyoming,  pp.  73  and  74,  sees.  319  and  320;  Anthony 
v.  Stimpson  ct  aL,  4  Kansas,  211. 

393 


394  DEAR  v.  TRACY.  [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

By  the  Court,  PECK,  J.  All  the  errors  assigned  were 
abandoned  upon  the  argument  but  two.  These  two  are  : 

1.  That  the  court  below  admitted,  in    evidence  for  the 
plaintiff  (below,  defendant  here),  the  items  of  the  account 
not  shown  to  be  in  the  handwriting  of  J.  W.  Dear. 

2.  That  the  court  admitted  Dear's  evidence.     These  two 
alleged  errors  appear  by  the  transcript  to  be  the  same  ob- 
jections in  different  forms ;  the  most  explicit  statement  of 
which  in  the  first-mentioned    form    means    that  the  court 
admitted,  in  evidence  for  the  plaintiff,  the  items  of  account 
not  shown  to  be  in  the  hand  of  Dear.     This  furnishes  the 
only  question  that  is  before  us.     The  petition  below  orig- 
inally contained  a  count  for  goods  sold  and  delivered  and 
money  lent ;  also  a  count  for  an  account  stated.     The  latter 
was  withdrawn   upon  the  trial,  leaving  the  suit  simply  one 
for  goods  and  money.     The   answer  is  the  general  denial. 
Annexed  to  the  count  for  goods  and  money  is  an  itemized 
copy  of  account  as  a  specification  of  the  goods  and  money 
sued  for.     This  copy  of  account  contains  other  charges  than 
for  goods  and  moneys,  as  sundry  charges  for  meal  tickets, 
pool  tickets,  boarding,  and  games  of  billiards,  which  other 
charges,  however,  were  not  embraced  in  the  cause  of  action ; 
and  if  treated  below  as  a  basis  of  recovery,  are   here  out  of 
question.     The  transcript  shows  that  the  plaintiff,  to  make 
out  his  case,  produced  his  books  of  account,  and  testified  : 
"  These  are  my  books  of  original  entry  and  blotters  of  the 
store.      They  show  continuous  dealings,   and   the    entries 
were  made  at  the  times  of  the   transactions,  or  supposed  to 
be.      The    entries    are  made  by  three  parties — mj^self,  my 
brother  and  George  Knox.     They  are  my  authorized  clerks. 
My  brother  and  Knox  are  in  Nebraska.     I  am  positive  the 
goods  were  delivered  at  the  time  the  entries  were  made,  but 
I  can't  swear  to  it.     Yes  ;  I  can  swear  to  it." 

The  books  were  then  offered  in  evidence  and  were  ad- 
mitted against  the  objection  that  no  entries  were  admissible 
which  were  not  shown  to  be  or  were  shown  not  to  be  in  the 
handwriting  of  the  witness.  The  objection  was  overruled. 


March,  1878.]  DEAR  v.  TRACY.  395 

Opinion  of  the  Court-   Pock,  J. 

and  the  exception  to  it  is  the  exception  in  question.  Speak- 
ing of  his  brother  and  Knox  as  his  clerks,  Dear  says,  "they 
are  my  authorized  clerks  ; "  but  he  was  evidently  using  the 
present  for  the  past  tense,  intending  to  convey  the  idea 
that  they  were  his  authorized  clerks  when  they  made  those 
entries,  and  the  district  court  must  have  so  understood  him. 
But  if  his  use  of  the  present  tense  is  to  be  taken  literally, 
making  a  defect  of  substance  in  his  evidence,  it  was  cured 
by  his  after  statement  that  they  "  were  "  at  the  time  in  ques- 
tion his  clerks.  Had  the  expression  of  the  witness,  "the 
entries  were  made  at  the  time  of  the  transactions  or  sup- 
posed to  be,"  stopped  at  the  word  transactions,  it  would 
have  laid  a  complete  foundation  for  the  admission  of  the 
books ;  but  the  addition  of  the  words  "  or  supposed  to  be," 
takes  from  it  that  effect;  "or  supposed  to  be  "  means  sim- 
ply "  as  we,  my  brother,  Knox  and  I  understood ; "  that  is, 
each  understanding  that  the  other  two  made  their  entries 
contemporaneously  with  the  transactions  covered  by  them. 
Dear's  statement  that  the  goods  were  charged  as  delivered 
made  the  books  evidence  as  to  the  goods ;  but  not  as  to  the 
other  charges,  which  were  in  suit;  and  that  because  the 
charges  for  the  goods,  the  deliveries  and  charges  being  con- 
temporaneous were  a  part  of  the  res  gestce  constituting  each 
delivery  and  its  corresponding  charge  one  transaction ;  be- 
cause the  charges  were  so  admissible  it  was  immaterial 
whether  the  clerks  were  living  or  dead,  within  or  without 
the  jurisdiction,  in  or  out  of  the  court  at  the  time  of  the 
offer,  the  absence  of  their  testimony  going  only  to  the  weight 
of  the  evidence  of  the  books.  This  accords  with  a  clear, 
well  established  and  familiar  principle  of  the  common  law, 
to  prove  which,  elaborate  citations  are  unnecessary :  1  Greenl. 
Ev.  sees.  117,  118,  120.  It  is  unnecessary  to  pass  upon  sec- 
tion 320,  at  page  72  of  the  complied  laws ;  and  we  do  not 
at  all  consider  the  statute  in  deciding  the  case.  The  offer 
of  the  books,  justly  construed,  was  limited  to  the  evidence 
which  justified  it,  and  therefore  to  the  deliveries  of  which 
contemporaneous  charges  had  been  made.  The  books  were 


396  PEASE  v.  TERRITORY  OF  WYOMING.     [Sup.  Ct. 

Opinion  of  the  Court — Blair,  J. 

admitted  simply  upon  this  offer.  It  is  true  that  the  tran- 
script indicates  quite  clearly  that  having  been  admitted,  the 
plaintiff  below  used  them  as  proof  of  all  the  entries  in  the 
account  embraced  in  the  issue ;  but  this  was  because  the 
defendant,  either  by  inadvertence  or  design,  omitted  to  con- 
fine their  use  to  the  ruling. 

The  judgment  below  is  affirmed ;  but  without  the  five  per 
cent,  allowance  permissible  in  cases  of  dilatory  appeals. 


PEASE  v.  THE  TERRITORY  OF  WYOMING. 

COUNTY  TREASURER — FEES. — A  county  treasurer,  under  the  statute  of 
Wyoming,  is  not  entitled  to  a  percentage  for  paying  over  at  the  ex- 
piration of  his  term  to  his  successor  the  funds  of  the  county  then 
remaining  in  his  hands  as  such  treasurer.  He  should  only  receive 
a  percentage  on  the  money  paid  out  by  him  while  performing  the 
ordinary  duties  of  his  office. 

ERROR  to  the  Second  District  Court,  for  Albany  County. 
C.  W.  Bramel,  for  plaintiff  in  error. 
M.  C.  Brown,  for  defendant  in  error. 

By  the  Court,  BLAIR,  J.  The  only  question  involved  in 
the  case  in  the  court  below  or  here  is  one  of  law  arising 
upon  an  agreed  statement  of  facts  submitted  to  the  court 
below  by  the  defendant  in  error  in  this  court.  Plaintiff  be- 
low and  the  plaintiff  in  error  here  being  defendant  below. 

The  question  presented  by  the  record  is  simply  this :  Is 
an  outgoing  county  treasurer  entitled,  under  the  laws  of 
this  territory,  to  a  percentage  on  moneys  received  by  him  as 
count}-  treasurer  and  by  him  turned  over  to  his  successor  in 
office.  The  court  below  decided  this  question  in  the  neg- 
ative, and  rendered  judgment  against  the  defendant  and  in 
favor  of  the  plaintiff  for  the  amount,  with  interest,  which 


March,  1878.]  PEASE  v.  TERRITORY  OP  WYOMING.        397 

Opinion  of  the  Court — Blair,  J. 

appeared  by  the  agreed  statement  of  facts  ;  that  the  defend- 
ant, as  county  treasurer,  had  retained,  as  a  percentage  on 
the  moneys  turned  over  by  him  to  his  successor  in  office. 
From  this  decision  and  judgment  of  the  court  below,  the  de- 
fendant in  the  court  below  and  plaintiff  in  error  here,  ap- 
pealed, and  assigns  as  error : 

1.  That  the  facts  set  forth  in  said  statement  of  facts  sub- 
mitting controversy,  are  not  sufficient  in  law  to  maintain  the 
aforesaid  action  thereof  against  the  said  L.  D.  Pease. 

2.  That  the  said  judgment  was  given  for  said  Territory  of 
Wyoming,  when  it  ought  to  have  been  given  for  the  said  L. 
D.  Pease,  according  to  the  law  of  the  land. 

A  proper  construction  of  that  part  of  section  60,  page  564 
of  complied  laws  of  this  territory,  which  prescribes  the 
compensation  to  be  received  by  the  county  treasurer  for  his 
services  as  treasurer,  cannot,  we  think,  fail  to  determine 
whether  either  of  the  errors  assigned  by  the  plaintiff  hi 
error  are  well  taken.  Section  60,  before  referred  to,  after 
prescribing  the  duty  of  each  county  treasurer,  declares : 
"  and  for  his  services  as  treasurer  he  shall  be  allowed  three 
per  cent,  on  the  dollar  on  all  sums  received  and  paid  out  by 
him."  It  is  admitted  in  argument,  that  there  must  not  only 
be  a  receiving,  but  paying  out,  to  entitle  the  treasurer  to  the 
percentage  mentioned  in  the  statute,  but  it  is  maintained  by 
the  plaintiff  in  error,  that  a  turning  over  to  his  successor  in 
office  of  all  moneys  in  his  hands  as  treasurer  is  such  a  pay- 
ing out  within  the  meaning  of  the  statute  as  entitles  the  out- 
going treasurer  to  the  percentage  prescribed  by  law.  We 
do  not  think  so.  Such  a  construction  of  the  statute  would 
do  violence  to  the  evident  intent  of  the  legislature.  We 
think  it  is  apparent  that  the  legislature  intended,  and  the 
obvious  meaning  of  the  section  is,  that  the  county  treas- 
urer should  receive  for  his  services  three  per  cent,  on  the 
dollar,  on  all  sums  received  and  disbursed  by  him  in  the 
manner  prescribed  by  law,  during  his  continuance  in  office. 
When  the  term'of  his  office  expires  his  successor  assumes, 
and  is  clothed  with  all  its  functions,  and  all  moneys  in  the 


398  PEASE  v.  TERRITORY  OF  WYOMING.     [Sup.  Ct. 

Opinion  of  the  Court — Blair,  J. 

possession  of  the  outgoing  county  treasurer  passes  with  the 
office  to  his  successor,  and  consequently  is  not  paid  out 
within  the  meaning  of  the  statute,  but  remains  in  the 
treasury. 

Counsel  for  the  plaintiff  in  error  also  assumed  the  posi- 
tion in  his  argument  before  this  court,  that  if  the  court 
should  hold  that  a  delivery  or  turning  over  by  an  outgoing 
treasurer  to  his  successor  in  office,  of  all  moneys  in  his 
possession  as  county  treasurer,  is  not  such  a  paying  out  as 
would  entitle  the  treasurer  to  the  percentage  named  in  the 
statute ;  then,  in  that  event,  he  would  be  entitled,  under 
section  12,  page  346,  of  the  compiled  laws  of  this  territory, 
to  a  reasonable  compensation  for  his  services. 

The  section  referred  to  reads  as  follows :  "  That  for  any 
services  rendered  by  an  officer,  wherein  no  fees  are  allowed 
by  this  act,  or  any  other  act  or  provision  of  law,  such  offi- 
cer shall  be  allowed  a  reasonable  compensation  therefor." 
There  is  certainly  no  ambiguity  in  this  section.  It  simply 
provides  that  where  no  fees  are  allowed  by  law  to  an  officer 
for  services  rendered,  such  officer  shall  be  allowed  a  reason- 
able compensation  for  such  services.  But,  inasmuch  as 
section  60,  before  referred  to,  does  expressly  fix  the  com- 
pensation the  county  treasurer  shall  receive  for  the  services 
alleged  to  have  been  performed  by  the  plaintiff  in  error,  we 
fail  to  see  that  section  twelve,  cited  by  counsel,  has  the 
slightest  bearing  on  the  point  this  court  is  called  upon  to 
decide.  We  see  no  error  in  the  ruling  of  the  court  below, 
and  its  judgment  is  affirmed ;  but,  inasmuch  as  it  appears 
to  the  court  that  there  were  reasonable  grounds  for  the  pro- 
ceedings in  error,  the  five  per  cent,  mentioned  in  the  stat- 
ute is  not  allowed  in  this  case. 


March,  1878.]  WHITE  t».  SISSON,  WALLACE  &  Co.          899 

Opinion  of  the  Court—- Blair,  J. 

WHITE  v.  SISSON,  WALLACE  &  CO. 

PBOCEEDINGS  IN  EBKOR — PRACTICE. — A  party  to  have  errors  complained 
of,  reviewed  by  the  supreme  court,  must  have  his  bill,  containing 
all  exceptions  upon  which  he  relies,  together  with  the  motion  for  a 
new  trial,  signed  or  allowed  by  the  presiding  judge  of  the  court 
below. 

ERROR  to  the  District  Court  for  Umta  County. 
A  sufficient  statement  is  contained  in  the  opinion. 
H.  Crarbanati,  for  plaintiff  in  error. 
Wm.  &.  Tonn,  for  defendant  in  error. 

By  the  Court,  BLAIR,  J.     This  cause  is  brought  here  by 

the  plaintiff  in  error  from  the  district  court  of  Uinta  county 
on  a  writ  of  error,  and  what  is  termed  a  "  transcript."  No 
bill  of  exceptions  appears  to  have  been  made  up  and  signed 
in  the  usual  manner  and  in  accordance  with  a  rule  of  this 
court,  that  the  alleged  errors  in  the  court  below  may  be  here 
reviewed. 

The  defendant  in  error  files  in  this  court  a  motion  to  affirm 
the  judgment  of  the  court  below,  for  the  reason  that  the  pro- 
ceedings of  the  court  below  are  not  presented  to  this  court  in 
such  a  manner  as  is  required  by  law  and  the  rules  of  court  to 
enable  the  court  to  review  the  same. 

This  court  has  heretofore  held,  in  the  cases  of  Murrin  v. 
Ul.lman,  Geer  v.  Muorrin,  and  numerous  other  cases,  that  a 
party  to  have  errors  complained  of  reviewed  in  this  court 
must  have  his  bill  containing  all  exceptions  upon  which  he 
relies,  together  with  the  motion  for  a  new  trial,  signed  or  al- 
lowed by  the  presiding  judge  of  the  court  below.  We  see  no 
reason  to  question  the  wisdom  of  the  rule  and  practice  so 
long  adhered  to  by  this  court  in  that  regard,  the  motion  of 
the  defendant  in  error  will  therefore  be  sustained,  the  pro- 
ceedings in  error  be  dismissed,  and  the  judgment  of  the  court 


400  HILLIARD  FLUME  Co.  v.  WOODS.       [Sup.  Ct. 

Argument  for  Plaintiff  in  Error. 

below  affirmed ;  but  inasmuch  as  it  appears  to  this  court  that 
there  were  reasonable  grounds  for  the  proceeding  in  error, 
the  five  per  cent,  mentioned  in  the  statute  is  not  allowed  in 
this  case. 

PECK,  J.,  dissenting. 


HILLIARD  FLUME  AND  LUMBER  CO.  v.  WOODS. 

EVIDENCE. — Although  an  error  was  committed  by  the  district  court  in 
admitting  certain  documentary  evidence,  yet  where  it  clearly  ap- 
peal's from  the  record  that  the  jury  could  not  have  been  misled 
thereby,  the  judgment  of  the  court  below  should  not  be  reversed 
on  that  ground. 

MEASURE  OF  DAMAGES. — Where  certain  railroad  ties  of  plaintiff  had 
been  wrongfully  converted  and  sold  by  defendant:  Held,  that  plain- 
tiff was  entitled  to  recover  the  highest  market  price  for  the  same 
that  was  paid  at  any  time  between  conversion  and  judgment. 

JURISDICTION  OF  APPELLATE  COURTS — WEIGHT  OF  EVIDENCE. — The 
supreme  coui't  should  not  reverse  a  judgment  of  a  lower  court  be- 
cause it  might  or  would  have  arrived  at  a  different  conclusion  upon 
the  evidence  adduced.  The  appellate  court  should  only  reverse 
where  there  is  no  testimony  to  sustain  or  rebut  a  material  allega- 
tion, or  where  it  is  apparent  that  the  jury  have  beeu  controlled  by 
improper  motives,  or  have  misunderstood  the  evidence. 

ERROR  to  the  District  Court  for  Uinta  County. 
A  full  statement  appears  in  the  opinion. 

Wm.  Gr.  Tonn,  for  plaintiff  in  error,  contended:  1.  That 
the  verdict  was  not  sustained  by  sufficient  evidence,  and 
was  contrary  to  law ;  2.  That  the  jury  erred  in  the  assess- 
ment of  damages ;  3.  That  the  court  erred  in  permitting  an 
affidavit  made  in  another  action  to  be  introduced  in  evidence 
by  one  of  the  witnesses  for  the  defense,  and  in  the  admis- 
sion of  other  testimony ;  4.  That  the  court  erred  in  the  in- 
structions to  the  jury ;  5.  That  the  court  erred  in  overruling 
the  motion  for  a  new  trial,  and  cited :  Clark  v.  Skinner,  20 
John.  465  ;  Pattison  v.  Adams,  7  Hill,  126  ;  Bond  v.  Mitchell, 
3  Barb,  304;  Me  Curdy  v.  Brown,  1  Duer,  101;  Hooben  v. 


March,  1878.]  MILLIARD  FLUME  Co.  v.  WOODS.  401 

Opinioii  of  the  Court — Peck,  J. 

Bidwell,  16  Ohio,  509 ;  Oliphant  v.  Baker,  5  Denio,  379  ; 
Terry  v.  Wheeler,  25  N.  Y.  520-5 ;  Benj.  on  Sales,  315,  774 ; 
Sedg.  on  Damages,  583, 591. 

H.  Grarbanati,  for  defendant  in  error,  cited  in  opposition  : 
Hilliard  on  New  Trials,  sec.  2,  p.  21 ;  sec.  3,  446  ;  also  sec. 
10,  p.  449 ;  sec.  19,  pp.  451,  456 ;  1  Pars,  on  Contr.  529, 
532  ;  G-raff  v.  Fitch,  Am.  Rep.  85 ;  Laws  of  Wyoming,  p. 
358,  sec.  2 ;  1  Pars,  on  Contr.  527 ;  Lang,  on  Sales,  153-85 ; 
1  Greenleaf,  sec.  27 ;  Hilliard  on  Torts,  p.  69,  sec.  27 ;  2 
Addison  on  Torts,  559 ;  Sedg.  on  Damages,  478-9. 

By  the  Court,  PECK,  J.  This  is  an  action  of  trover  for 
the  conversion  of  three  thousand  railroad  ties  of  the  value 
as  alleged  in  the  petition  below,  of  six  hundred  dollars ;  the 
answer  is  the  general  denial ;  the  trial  was  by  jury,  and  a 
verdict  rendered  for  the  plaintiff  below,  for  five  hundred 
and  forty-two  dollars  and  fifty  cents,  interest  included.  Un- 
der the  instruction  of  the  court,  I  now  read  its  opinion, 
having  prepared  it  upon  a  scrupulous  examination  of  the 
bill  of  exceptions,  of  which  the  exceptions  and  the  matters 
on  which  they  rest  cover  over  seventy  pages. 

The  first  exception  is  to  the  admission  of  the  following 
question,  put  to  William  K.  Sloan,  a  witness  called  by  the 
plaintiff,  on  his  re-direct  examination,  namely  :  "  What 
were  ties  then  selling  for  at  the  railroad  ?  "  The  exception 
is  urged  upon  the  proposition  that  the  rule  of  damages  in 
trover  allows  a  recovery  for  the  highest  market  price  or 
value  attributable  to  the  property,  between  the  conversion 
and  the  trial,  but  confines  it  to  the  highest  at  the  place  of 
conversion.  Granting  this  proposition  as  true,  let  us  see 
what  conclusion  it  leads  to.  A  market,  in  the  sense  of  a 
rule  of  charges,  is  either  a  district  of  country  in  which 
trade  in  one  or  several  articles  is  habitually  conducted  as 
to  furnish  a  criterion  of  value  of  the  thing  or  criteria  of 
the  values  of  the  things  there  sold,  or  is  it  the  point  of 
trade  to  which  the  trade  of  a  district  centers. 

As  the  evidence  stood  when  the  exception  was  taken,  it 
26 


402  HILLIARD  FLUME  Co.  v.  WOODS.       [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

tended  to  show,  and  for  the  purpose  of  testing  the  excep- 
tion, must  be  treated  as  showing  that  Bear  river  was  the 
water  route  for  the  transportation  to  market  of  the  cutting  of 
the  timber  lands  lying  upon  its  border,  and  it  is  judicially 
known  to  pass  from  those  lands  to  Hilliard  through  a  wild 
and  thinly-settled  country;  that  in  the  spring  and  early 
summer  of  1876,  Woods  owned  and  possessed  three  thou- 
sand ties,  lying  at  Hayden's  Fork,  upon  the  river,  separate 
from  all  others  ;  that  the  company  knew  that  he  had  the  ties 
there,  and  could  have  ascertained  their  identity ;  that 
Woods,  being  such  owner  and  so  in  possession,  and  the 
ties  so  separated  and  susceptible  of  identification,  the  com- 
pany, with  full  knowledge  of  these  particulars,  artfully 
appropriated  and  converted  the  ties,  and  thereupon,  through 
its  agent,  the  Evanston  Lumbering  Company,  took  the  ties 
and  floated  them  down  the  river  to  the  Big  Bend,  so  called, 
of  the  river,  which  is  about  three  miles  east  of  Evanston, 
loading  them  at  the  tie  switch  of  the  Union  Pacific  Railroad, 
this  switch  being  in  the  side  track  by  which  ties  supplied 
to  the  road  are  received  and  distributed  over  it ;  that  the 
road  created  the  only  market  for  ties  existing  in  that  part 
of  the  country ;  and  that  the  entire  tie  manufacture  upon 
that  water  route  was  for  the  supply  of  the  road ;  that  Coe 
&  Carter,  as  supply  contractors,  collected  for  and  deliv- 
ered to  the  road  all  the  ties  used  by  it,  and  the  other  par- 
ties engaged  in  the  tie  trade  along  that  route  supplied 
directly  or  indirectly  to  them ;  that  the  Hilliard  Flume  and 
Lumber  Co.,  having  received  the  ties  in  question  from  the 
Evanston  Lumbering  Co.,  at  the  Big  Bend  or  tie  switch, 
sold  and  delivered  them  in  July  or  August,  1870,  to  Coe 
&  Carter. 

.  That  evidence  further  shows  that  the  Hilliard  Flume  and 
Lumber  Company  was  engaged  in  the  tie  trade  upon  this 
route,  manufacturing  ties  in  the  timber  lands,  also  obtain- 
ing them  from  sub-contractors  :  that  the  Evanston  Lumber- 
ing Company  was  engaged  in  it  on  this  route  ;  that  as  early 
as  Januarv,  1875,  Burris  &  Bennett  were  under  a  contract 


March,  1878.]  MILLIARD  FLUMB  Co.  v.  WOODS.  403 

Opinion  of  the  Court— Peck,  J. 

with  the  Milliard  Flume  and  Lumber  Company  to  supply  it 
with  ties  upon  this  route  ;  that  in  or  about  the  spring  or 
early  summer  of  that  year,  Woods  conditionally  sold  three 
thousand  to  Burns  &  Bennett,  to  apply  upon  their  contract 
with  the  Milliard  Flume  and  Lumber  Company;  but  that 
evidence  does  not  tend  to  show  where  these  several  contracts 
were  made,  nor  where  the  different  lots  of  ties  respectively 
embraced  by  these  contracts  were  when  the  contracts  were 
made,  with  the  single  exception  of  those  conditionally  sold, 
nor,  with  that  exception,  whether  the  ties  were  cut,  nor,  with 
the  exception  of  the  two  contracts  of  Burris  &  Bennett, 
where  the  deliveries  were  to  be  made.  From  the  nature  of 
the  case,  one  of  two  things  must  follow  —  either  that  the 
whole  water  route  between  the  timber  lands  and  the  ultimate 
point  or  points  of  delivery  at  or  along  the  route  was  a  tie 
market,  or  that  the  big  bend  at  the  tie  switch  was  the,  or  a, 
market,  as  being  the,  or  one  of  the,  objective  points  of  sup- 
ply for  the  route,  and  therefore  to  its  district  a  point  or  the 
point  to  which  its  trade  centered,  therefore  its  center,  or  one 
of  its  centers,  of  trade.  This  point  necessarily  prescribed,  so 
far  as  can  be  seen  from  the  evidence,  the  most  definite,  accu- 
rate and  reliable  standard  of  price  in  the  trade  between  it 
and  the  timber  lands,  and  we  therefore  regard  it  as  the  market. 
Now,  the  proposition  on  which  the  exception  is  urged  evi- 
dently treats  Hayden's  Fork,  and  therefore  the  locus  of  the 
conversion,  as  the  place  to  furnish  the  value  of  the  property 
converted,  conceding  this  the  value  at  the  time  of  the  sale 
and  delivery  to  Coe  &  Carter,  in  July  or  August  following, 
or  during  these  months,  the  point  or  period  of  time  embraced 
by  the  question,  would-  be  the  price  of  such  ties  then  pre- 
vailing at  the  bend  or  switch,  less  the  price  of  transportation 
from  the  Fork ;  but  if  that  rule  prevails  another  must  be 
complied  with. 

The  company  subjected  itself  to  its  willful  tort  to  the  sale, 
that  having  been  added  to  the  value  of  the  transportation, 
it  did  it  for  the  benefit  of  the  owner,  otherwise  it  could  com- 
mit the  tort  and  escape  one  of  its  consequences  :  Sedg.  on 


404  MILLIARD  FLUME  Co.  v.  WOODS.       [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

Damages,  483  and  484.  To  so  familiar  a  principle,  further 
citation  is  unnecessary.  Had  Woods  recaptured  or  replevied 
the  ties  after  this  addition  of  value,  instead  of  suing  in  trover, 
he  could  have  had  them  as  he  found  them,  and  would  not 
have  been  compelled  to  account  to  the  company  for  the  added 
value.  He  has  the  same  exemption  in  trover,  in  which  he 
may  recover  the  value  of  what  he  might  have  had  in  an- 
other form  in  the  things  themselves.  Hence  the  question 
objected  to  was  stricty  competent,  for  it  simply  called  for  the 
price  prevailing  at  the  tie  switch  where  the  company  sold  to 
Coe  &  Carter,  which  was  calling  for  the  Hayden  Fork 
price,  plus  the  transportation.  The  proposition,  however,  on 
which  the  exception  is  urged,  proceeds  upon  a  supposed 
American  rule.  Whether  there  is  such  a  rule,  or,  if  one, 
whether  the  proposition  accurately  states.it,  it  is  unnecessary 
to  inquire.  The  English  rule  governs  this  court ;  according 
to  that,  where  the  price  or  value  of  the  converted  property 
fluctuates  between  the  conversion  and  the  trial,  it  is  held 
proper  that  the  plaintiff  should  recover  the  highest  market 
value,  which  the  property  or  like  property  has  reached  in  its 
intended  market  during  that  interval ;  and  this  upon  the  two- 
fold ground  of  making  him  good  and  of  preventing  the  con- 
verter from  profiting  from  his  own  wrong ;  leaving  it,  how- 
ever, to  the  jury  to  allow,  in  its  discretion,  the  highest  dam- 
ages under  this  principle,  or  lower  damages :  Sedgwick  on 
Damages,  476  to  479,  494  to  495. 

That  criterion  would  have  enhanced  the  price  at  the  tie 
switch  at  the  time  pointed  at  in  the  question  excepted  to, 
the  transportation  upon  another  principle  already  explained 
included.  The  price  of  the  English  rule  becomes  more 
dear  when  we  consider  that  the  water  route  and  the  market 
at  the  bend  or  switch  were  as  open  to  the  plaintiff  as  to  the 
company  when  the  latter  unlawfully  attempted  to  deprive 
him  of  that  opportunity  for  profit,  and  it  was  his  right  to 
be  restored  to  what  it  thus  endeavored  to  take  from  him ; 
and  the  competency  of  the  question  is  rendered  still  more 
clear  by  the  fact  that  the  cross-examination  preceding  it 


March,  1878.]  MILLIARD  FLUME  Co.  v.  WOODS.  405 

Opinion  of  the  Court — Peck,  J. 

had  developed  from  the  witness  the  fact  that  Coe  &  Carter, 
as  the  tie  suppliers  of  the  road,  created  the  market,  and 
when  they  were  not  buying,  it  was  down.  It  was  entirely 
consistent  at  this  point  for  the  plaintiff  to  ascertain  how  it 
was  when  they  were  buying.  Being  competent,  the  ques- 
tion was  relevant. 

The  witness  answered  that  the  price  was  forty  cents  for 
ties  and  twenty  for  culls  on  a  two  years'  credit,  therefore 
the  defendant  moved  to  strike  out  the  answer  as  incompe- 
tent and  irrelevant ;  the  motion  was  overruled  and  an  ex- 
ception taken. 

The  answer  was  competent,  and  therefore  relevant,  be- 
cause it  furnished  something  of  a  standard  by  which  to 
arrive  at  a  cash  value  at  that  time.  Louis  Bennett,  a  wit- 
ness for  plaintiff,  was  asked  by  him  how  it  happened  that 
he,  plaintiff,  used  the  brand  B.  and  BB.  for  the  ties,  the 
question  was  objected  to  as  irrelevant,  admitted,  and  an 
exception  taken ;  the  ownership  and  possession  of  the  ties 
at  the  time  of  the  alleged  conversion  were  in  issue,  the 
question  went  directly  to  the  identity,  and  was  relevant. 

In  rebuttal  the  plaintiff  offered  in  evidence  a  document 
purporting  to  be  a  copy  of  an  affidavit  made  by  W.  K. 
Sloan,  on  the  behalf  of  the  Hilliard  Flume  and  Lumber 
Company,  in  a  suit  of  replevin  instituted  by  the  company 
against  Burris  &  Bennett,  in  Utah  county,  in  the  third 
judicial  district  of  Utah,  for  certain  railroad  ties  ;  its  ad- 
mission was  objected  to  as  not  being  properly  authenti- 
cated ;  the  objection  was  overruled  and  an  exception  taken. 
The  document  is  not  properly  authenticated,  the  attestation 
of  the  clerk  which  is  upon  it  being  unverified  by  an  accom- 
panying certificate  of  a  judge  of  the  court  in  which  the 
original  purported  to  be  as  required  by  [J.  S.  Rev.  Stat., 
p.  170,  sec.  905  ;  and  though  Sloan,  in  connection  with  the 
offer  admitted  on  the  stand  that  he  had  made  at  Salt  Lake 
City  an  affidavit  for  the  company  against  Burris  &  Ben- 
nett, he  does  not  admit  the  making  of  the  affidavit  in  ques- 


406  HILLIARD  PLUME  Co.  t>.  WOODS.       [Sup.  Ct 

Opinion  of  the  Court — Peck,  J. 

tion.  The  objection,  therefore,  was  sound,  and  should 
have  been  sustained ;  but  the  error  was  cured  by  the  fact 
that  after  the  reading  of  the  document  Sloan  was  recalled 
and  distinctly  admitted  its  veiity. 

The  defendant  further  objected  to  the  document  upon  the 
ground  that  it  was  an  attempt  by  the  plaintiff  to  impeach  his 
own  witness,  meaning  Sloan ;  that  it  contained  nothing  con- 
tradictory of  any  of  the  testimony  of  the  defense ;  that  it  was 
not  rebutting  and  was  irrelevant.  The  affidavit  conflicted 
with  no  evidence  which  had  been  given ;  Sloan  as  a  witness 
for  the  plaintiff,  therefore,  cannot  be  said  to  have  been  em- 
ployed by  the  plaintiff  to  impeach  his  own  witness.  It  did, 
however,  conflict  with  evidence  of  Sloan  given  as  a  witness 
for  the  defense.  The  plaintiff,  in  his  opening,  introduced 
evidence  tending  to  show  that  Burris  &  Bennett  had  con- 
tracted with  the  defendant  to  deliver  ties  to  it  at  its  feeder, 
which  was  on  the  stream  at  or  below  the  Fork ;  and  under 
this  contract,  in  the  spring  of  1875,  put  into  the  Fork  some 
twenty-five  thousand  to  twenty-nine  thousand  ties,  and 
branded  them  B.  and  BB.,  in  order  to  distinguish  them  as 
their  contract  ties ;  that  they  embraced  the  three  thousand 
ties  which  he  had  conditionally  sold  to  them,  as  above  stated, 
and  which  had  been  put  into  the  stream  by  them  above  and 
at  the  rear  of  the  others,  and  which  were  marked  in  the  same 
way ;  and  while  the  conditional  sale  was  in  force,  that  Bur- 
ris &  Bennett  began  to  float  or  drive  the  whole  lot,  so  col- 
lected in  the  Fork,  down  to  the  feeder,  when  the  water 
failed  and  the  drive  was,  in  driving  parlance,  "  hung  up ; " 
that  while  so  hung  up,  Burris  &  Bennett,  failing  to  pay  for 
the  wood  ties  and  acquiring  the  title  to  them,  agreed  with 
him  to  cancel  the  sale  and  return  them ;  and  that  by  way  of 
a  cancellation  to  return,  three  thousand  of  like  ties  should 
be  counted  off  from  the  rear  of  the  drive  as  his,  and  in  July 
of  the  same  year  this  was  done,  and  the  three  thousand  so 
counted  off  and  delivered  there  by  Burris  &  Bennett  to  and 
accepted  by  him  as  the  restored  ties,  and  they  were  then 
physically  separated  from  the  rest  of  the  drive  a  distance  of 


March,  1878.]  MILLIARD  FLUME  Co.  v.  WOODS.  407 

Opinion  of  the  Court— Peck,  J. 

fifteen  to  twenty  feet  and  cross-piled  upon  the  bank,  the 
remainder  of  the  drive  left  as  before,  and  consisting  of  the 
Burris  &  Bennett  contract  ties;  that  the  drive  continued  so 
hung  up  until  in  June,  1876,  when  the  Evanston  Lumbering 
Company,  as  the  agent  of  the  defendant,  under  a  special 
contract  and  by  its  special  direction,  given  for  the  purpose 
of  having  the  contract  executed,  took  possession  of  all  the 
B.  &  BB.  marked  ties  at  the  Fork  and  upon  the  stream  and 
drove  them  down  for  the  defendant.  Beard  testified  for  the 
defense  that  he  was  the  defendant's  agent  at  the  feeder  or 
boom,  authorized  to  contract  with  Burris  &  Bennett  for  ties 
for  the  company,  and  to  receive  them  and  pay  for  them  in 
provisions  and  other  supplies  out  of  the  company's  store  at 
the  feeder,  which  was  kept  there  to  supply  tie  and  lumber- 
men, and  the  charge  of  which  was  a  part  of  his  agency,  and 
see  to  their  boarding,  that  as  such  he  contracted  with  them 
for  ties. 

That  afterwards  in  January,  1875,  Woods  contracted  the 
three  thousand  ties  to  Burris  &  Bennett,  to  be  delivered  by 
them  to  the  company  under  their  said  contract  with  it,  and 
deliver  them  over  to  Burris  &  Bennett,  accordingly  and 
thereupon  the  latter  delivered  them  to  him  as  its  agent,  and 
after  they  had  been  so  delivered  to  him,  that  they  were 
branded  with  the  B.  &  BB.  mark  to  distinguish  them  as  the 
company's  ties  as  received  from  Burris  &  Bennett  under  its 
contract  with  them. 

Beard  further  testified  that  the  contract  so  made  between 
Burris  &  Bennett  and  the  company,  before  the  Woods'  con- 
tract was  made  with  them,  called  for  a  delivery  by  him  to 
the  company  at  the  boom  or  feeder.  That  after  Woods  had 
so  sold  to  Burris  and  Bennett,  the  original  contract  between 
Burris  &  Bennett  and  the  company,  the  company  was  ver- 
bally changed,  so  that  the  company  might  receive  their  ties 
wherever  they  were,  whether  in  the  timber  or  between  it 
and  the  feeder  or  along  the  stream  at  different  prices,  but  to 
be  paid  for  at  the  full  original  price  for  what  lie  should  de- 
liver at  the  feeder ;  that  under  the  contract  so  modified,  the 


408  HILLIAKD  FLUME  Co.  v.  WOODS.       [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

company  received  and  took  into  its  possession  all  the  Burris 
&  Bennett  ties  in  the  timber  along  and  in  the  stream,  and 
had  them  marked  with  the  same  B.  &  BB.  brand,  and  with 
its  own  branding  iron  furnished  for  the  purpose  and  for  the 
same  purpose  of  distinction  as  in  the  case  of  the  Wood  ties. 
After  the  defendant  had  thus  in  its  defense  introduced  evi- 
dence to  show,  and  tending  to  show,  that  all  the  B.  &  BB. 
ties  had  been  delivered  and  received  into  its  possession  under 
its  contract  with  Burris  &  Bennett,  by  the  time  of  the  hang- 
ing up  of  the  drive  in  August,  1875. 

Sloan  was  put  on  for  the  defense  and  testified,  that  in  the 
fall  of  1875  he  went  up  to  the  Fork  and  rode  along  the  entire 
drive,  wherever  the  B.  &  BB.  ties  were,  inspecting  them, 
and  saw  no  ties  separated  at  the  upper  or  rear  end  from  the 
rest,  and  that  in  his  opinion  he  must  have  seen  such  a  sepa- 
ration had  there  been  one ;  that  on  the  other  hand,  all  the 
ties  seemed  to  be  massed  together  in  the  stream. 

The  very  object  of  this  testimony  by  Sloan  was  to  refute 
the  plaintiff's  evidence,  so  far  as  it  tended  to  show  that  the 
sale  by  Woods  to  Burris  &  Bennett  was  conditional,  that 
the  condition  was  not  performed,  and  that  as  a  consequence 
the  contract  had  been  cancelled,  and  his  three  thousand  ties 
restored  to  him  by  a  counting  off  and  separation  from  the 
rear  of  the  drive. 

Wherefore,  on  the  other  hand,  all  the  ties  at  the  upper 
end  lay  in  an  undistinguishable  mass  with  the  rest  of  the 
ties,  as  the  company's  ties,  and  that  the  ties  in  question  had 
been  left  in  its  possession  as  originally  delivered  to  it. 
This  was  evidently  to  corroborate  Beard,  and  treated  the 
ties  as  then  in  possession  of  the  company.  No  evidence 
was  adduced  for  the  defense  to  show  that  the  possession  of 
the  company  had  prior  to  May  25,  1876,  shifted  to  Burris 
&  Bennett,  and  on  the  face  of  the  defendant's  evidence 
it  appeared  as  a  fact  that  they  had  received  possession 
prior  to  and  retained  it  up  to  that  dttte.  This  was  the 
status  of  the  testimony ;  the  plaintiff  began  to  rebut,  and 
under  the  rebuttal  he  called  Sloan  as  a  witness,  and  his 


March,  1878.]  MILLIARD  FLUME  Co.  v.  WOODS.  409 

Opinion  of  the  Court — Peck,  J. 

evidence  given  at  this  time  implies  that  it  was  in  answer  to 
an  inquiry,  or  inquiries,  whether  he  had  ever  testified  that 
the  company  had  not  received  possession  from  Burris  & 
Bennett  under  the  contract.  This  examination,  however, 
was  manifestly  to  lay  the  foundation  for  introducing  the 
affidavit,  and  was  for  that  purpose  indispensable.  He 
answering  in  the  negative,  the  foundation  was  laid  for  in- 
troducing the  instrument.  It  was  introduced,  and  contra- 
dicted his  evidence  given  for  the  defense,  because  it  stated 
that  on  the  twenty-fifth  day  of  May,  1875,  the  possession 
was  in  Burris  &  Bennett.  But  the  affidavit  is  not  merely 
the  declaration  of  Sloan.  It  is  the  declaration  of  the  com- 
pany in  a  suit  instituted  by  it  to  obtain  the  possession  of 
the  ties  as  then  held  by  Burris  &  Bennett,  and  was  there- 
fore pertinent  as  contradicting  its  defense  as  contained  in 
the  testimony  of  Beard.  The  affidavit  was  therefore  con- 
tradictory of  material  evidence  adduced  for  the  defense, 
was  relevant  and  rebutting.  In  the  rebutting  the  plaintiff 
offered  an  order  for  four  hundred  and  thirty  dollars,  dated 
March  22,  1875,  drawn  by  Burris  &  Bennett  in  his  favor 
on  the  company,  and  accepted  by  Beard ;  the  offer  was  ob- 
jected to  as  irrelevant,  not  rebutting  and  incompetent,  was 
allowed,  and  an  exception  taken.  Beard  as  a  witness  for 
the  defense,  in  addition  to  his  testimony  as  to  his  agency 
for  the  company  and  its  extent,  his  contracting  with  Burris 
&  Bennett  for  ties,  and  the  subsequent  contract  between 
them  and  Woods  for  the  ties  of  the  latter  to  be  delivered 
to  Burris  &  Bennett,  to  be  applied  upon  their  contract 
with  the  company,  and  to  their  being  so  delivered ;  all  this 
shows  that  the  Woods'  ties  were  owned  and  possessed  by 
the  company  when  they  drove  them  to  the  Bend,  also  testi- 
fied that  after  these  ties  had  been  so  delivered  to  the  com- 
pany he,  as  such  agent,  supplied  out  of  the  store  sundry 
provisions  to  Woods  on  orders  of  Burris  &  Bennett  towards 
payment  of  the  ties,  and  entered  them  upon  the  store  book, 
in  corroboration  of  his  testimony  producing  suclta  book. 
In  the  rebutting,  Woods  testified  that  on  March  22, 


410  HILLIARD  FLUME  Co.  v.  WOODS.       [Sup.  Ct 

Opinion  of  the  Court — Peck,  J. 

1875,  he  sold  to  Burris  &  Bennett  a  pair  •  of  mules,  took  in 
payment  for  them  the  order  in  question,  and  with  the  under- 
standing that  he  was  to  g.et  provisions  upon  it  on  their 
account  from  the  store  ;  that  Beard  accepted  it,  and  that  he 
did  get  provisions  upon  it  accordingly ;  and  that  the  pro- 
visions which  he  got  there,  and  which  Beard  had  sworn  to 
as  obtained  of  him,  were  got  on  that  order,  and  not  on 
account  of  his  ties.  This  testimony  by  Woods  was  «le«rly 
rebutting,  and  very  properly  not  objected  to.  At  this  point 
the  order  was  offered  and  correctly  admitted,  because  it 
went  in  direct  confirmation  of  the  testimony  just  given  by 
him  ;  it  was  relevant,  rebutting  and  competent. 

The  plaintiff  requested  the  court  to  charge  that  posses- 
sion of  the  ties  was  prima  facie  evidence  of  title,  and  that 
should  they  find  that  he  was  in  possession  when  the  defend- 
ant drove  them  from  the  Fork,  the  latter  must  have  a  pre- 
ponderance of  evidence  to  prevent  a  recovery.  The  request 
was  complied  with,  and  the  defendant  excepted.  The 
request  was  properly  granted. 

The  plaintiff  next  requested  the  court  to-charge  that  if 
the  jury  should  find  that  Woods  owned  the  ties  and  the  de- 
fendant converted  them,  it  was  not  necessary  to  find  that 
they  were  in  the  possession  of  the  plaintiff  at  the  'time  of 
the  conversion,  meaning  to  entitle  the  plaintiff  to  recover. 
The  request  must  be  construed  in  the  light  of  the  evidence 
relating  to  it.  It  required  the  jury  to  find  two  distinct 
facts,  ownership  in  the  plaintiff  and  a  wrongful  conversion, 
as  the  conditions  of  a  verdict  for  him.  If,  under  any  ten- 
dency of  the  evidence  the  jury  might  have  found  these  facts, 
the  request  was  proper.  It  was  a  starting  point  on  both 
sides,  that  the  plaintiff  originally  owned  the  ties.  The  jury 
might  have  rejected  the  evidence  of  Beard  as  to  an  arrange- 
ment by  which  the  title  and  possession  of  the  ties  was 
claimed  to  have  passed  to  the  company,  and  have  found 
that  the  plaintiff  made  a  conditional  sale  and  delivery,  just 
as  the  evidence  on  his  side  tended  to  show.  If  they  so 
found,  they  found  as  attributes  of  the  sale  that  the  delivery 


March,  1878.]  MILLIARD  FLUME  Co.  v.  WOODS.  411 

opinion  of  the  Court — Peek,  J. 

under  it  was  conditional,  and  the  credit  and  possession 
allowed  to  the  vendees  were  terminable  at  the  plaintiff's 
will,  the  right  to  immediate  possession  thus  remaining  in 
him,  drawing  after  it  a  constructive  possession. 

The  jury  might  next  have  found  that  the 'Actual  possession 
so  passed  to  the  vendees  was  not  reclaimed,  as  the  plain- 
tiff's evidence  tended  to  show.  They  must  then  have  found 
the  fact  as  claimed  by  the  evidence  of  the  defense,  as  well 
as  admitted  by  its  principal  manager,  Sloan,  in  the  plain- 
tiff's opening  case.  While  the  possession  was  so  left  with 
the  vendees,  the  defendant  appropriated  the  property  at  the 
Fork  in  the  driving  season  of  1876,  as  its  own  actual  prop- 
erty, drove  it  to  the  Bend  as  such,  and  as  such  sold  and 
delivered  it  to  Coe  &  Carter,  either  of  which  acts  would 
have  constituted  a  wrongful  conversion  committed  upon  the 
plaintiff's  right  of  possession.  Or  the  jury  might  have 
gone  further,  and  found  that  after  the  conditional  sale  and 
delivery  to  Burris  &  Bennett  had  been  made,  as  aforesaid, 
the  contract  was  cancelled,  and  the  ties  restored  to  Woods, 
and  thereupon  piled  upon  the  banks,  apart  from  the  rest  of 
the  drive ;  and,  in  July,  1875,  just  as  the  evidence  on  his 
part  tended  to  show,  and  have  also  found  that  in  the  fall 
following,  when  Sloan  inspected  the  drive,  they  <had,  by 
some  interference,  though  unexplained,  been  placed  back 
into  the  drive,  and,  when  lie  saw  them,  being  mixed  in  with 
and  as  a  part  of  the  drive,  and  had  further  found  that 
Burris  &  Bennett  had  not  delivered  any  of  the  drive  to  the 
defendant.  Had  the  jury  gone  so  far  in  their  conclusions, 
they  would  have  found  that  they  had  gone  back  into  the 
actual  possession  of  Burris  &  Bennett,  though  still  in  the 
constructive  possession  of  Woods ;  next  finding  the  several 
acts  of  conversion  committed,  as  aforesaid,  by  tl-e  defend- 
ant, they  would  have  found  a  wrongful  con-version  com- 
mitted upon  the  plaintiff's  right  of  possession.  We  think 
that  the  request  was  properly  granted. 

The  plaintiff  requested  the  court  to  charge  that  if  the  jury 
should  find  that  defendant  was  to  have  furnished  Woods 


412  HILLIARD  FLUME  Co.  v.  WOODS.        [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

with  provisions  or  other  property,  on  condition  that  he 
turned  over  his  ties  to  Burris  &  Bennett,  they  must  find 
that  the  defendant  complied  with  its  condition  before  it 
could  acquire  any  right  in  the  ties,  and  that  the  ties  were 
first  turned  over  by  Woods  and  afterwards  by  Burris  & 
Bennett  to  the  defendant.  The  request  was  granted,  and 
defendant  excepted.  There  was  no  evidence  on  the  part  of 
the  plaintiff,  tending  to  show  any  such  contract ;  that  on  the 
part  of  the  defense  tended  to  show  only  a  contract  of  sale 
as  to  which  the  defendant  would  at  most  only  be  condition- 
ally liable  to  Woods  for  such  credit,  if  any,  as  Burris  & 
Bennett  might  have  with  them.  The  request  contemplated 
an  absolute  contract  between  Woods  and  the  defendant 
composed  of  reciprocal  conditions,  and  requiring  contempo- 
raneous performance.  No  evidence  tended  to  show  such  a 
contract.  It  was,  therefore,  abstract  and  inappropriate. 
It  was  improper  to  grant  it,  but  the  error  could  not  have 
misled  the  jury,  who  must  be  supposed  to  have  under- 
stood the  evidence  as  accurately  as  we  do,  was  harmless, 
and  the  refusal  not  ground  for  reversal. 

The  plaintiff  requested  the  court  to  charge  that  the  meas- 
ure of  damages  was  the  highest  market  value  of  first-class 
quality  of  ties  between  the  alleged  conversion  and  "this 
time,"  meaning  the  time  of  the  trial,  with  interest ;  the 
request  was  granted,  and  the  defendants  excepted.  We  have 
already  shown  that  the  request  was  correct  as  to  the  market 
rate,  and  the  period  during  which  the  plaintiff  might  apply 
it.  In  the  absence  of  any  proof  as  to  the  quality  of  the  ties 
having  been  established,  the  law  would  presume  that  the 
ties  were  of  the  best  quality:  Sedg.  on  Dam.  475.  There 
was  no  evidence  to  the  contrary,  and  the  presumption  held. 
Moreover,  the  plaintiff  testified  that  they  were  good.  This 
was  not  denied,  and  stood  conceded.  On  the  argument, 
the  counsel  for  the  plaintiff  in  error,  explained  to  us,  that 
there  were  two  classes  of  ties,  the  standard  and  the  culls, 
which  are  below  standard.  The  plaintiff's  remark,  that  his 
ties  were  good,  plainly  meant  that  they  were  standard  ties. 


March,  1878.]  BILLIARD  FLUME  Co.  v.  WOODS.  413 

Opinion  of  the  Court — Peck,  J. 

The  request  referred  to  these  good  ties.  We  think  that  this 
request  was  properly  granted. 

The  plaintiff  requested  the  court  to  charge,  that  if  there 
was  a  contract  made  in  the  cabin  of  Woods  between  him, 
Burris  &  Bennett,  and  the  defendant,  by  which  he  was  to 
turn  over  his  ties  to  Burris  &  Bennett  for  defendant's 
benefit,  they  must  find  the  contract  was  executed ;  or  if  con- 
ditional, that  the  conditions  were  complied  with  by  Burris 
&  Bennett  and  the  defendant.  The  request  was  granted, 
and  an  exception  taken.  We  think  that  it  was  properly 
granted,  and  for  reasons  too  obvious  to  require  explanation. 

The  plaintiff  requested  the  court  to  charge  that  the  alle- 
gation of  a  delivery  of  the  ties  by  Woods  to  Burris  & 
Bennett,  and  by  the  latter  to  defendant,  was  material,  the 
onus  of  establishing  it  rested  upon  the  defendant;  the  re- 
quest was  granted  and  an  exception  taken,  but  the  request 
was  obviously  correct. 

The  plaintiff  requested  the  court  to  charge  that  statements 
made  by  Bennett,  repugnant  to  his  testimony,  might  be  con- 
sidered by  the  jury  as  to  his  credibility,  but  were  not  binding 
on  the  plaintiff,  nor  to  be  treated  as  his  admissions.  The 
request  was  granted  and  an  exception  taken,  but  the  request 
was  obviously  proper. 

The  defendant  requested  the  court  to  charge  that  if  Woods 
sold  the  ties  to  Burris  &  Bennett,  to  be  sold  and  turned 
over  by  them  to  the  defendant  under  their  contract  with  it, 
and  they  did  so  sell  and  turn  them  over,  the  plaintiff  could 
not  recover.  The  court  refused  so  to  charge,  and  the  de- 
fendant excepted.  Had  the  request  been  based  upon  the 
finding  of  the  jury  of  an  absolute  contract  of  sale  by  Woods 
to  Burris  &  Bennett,  such  as  Beard's  evidence  tended  to 
show,  it  would  have  been  correct;  but  had  the  court  granted 
the  request,  the  jury,  finding  that  the  sale  and  delivery  by 
Woods  were  conditional,  as  the  evidence  on  his  part  tended 
to  show,  would  have  been  obliged  to  return  a  verdict  for  the 
defendant.  Such  a  charge  would  have  been  erroneous,  be- 
cause the  condition  in  the  sale  and  delivery  would  have  fol- 


414  MILLIARD  FLUME  Co.  v.  WOODS.        [Sup.  Ct. 

Opinion  of  th«  Court—  Peck,  J. 

lowed  the  delivery  of  the-  property  and  kept  the  title  in 
Woods  until  the  conditions  had  been  satisfied.  The  request 
was  therefore  properly  refused.  The  defendant  requested 
the  court  to  charge,  that  if  the  jury  should  find  that  the 
plaintiff  agreed  with  Burris  &  Bennett,  in  the  presence  of 
defendant's  agent,  to  sell  the  ties*  to •  Burris  &  Bennett,  and 
the  defendant  by  its  agent  then  and  there  agreed  to  pay  the 
plaintiff  for  the  ties,  on  order  from  Burris,  in  money  or 
merchandise,  and  did  pay  the  plaintiff  any  goods  on  said 
account,  and  received;  the  ties  on  the  Burris  &  Bennett 
contract,  the  plaintiff  could  not  recover  unless  the  defend- 
ant had  notice  of  a  condition  in  the  sale  to  Burris  &  Ben- 
nett by  which  the  ties  were  to  remain  his  until  paid  for. 
The  request  defined  an  absolute  contract  between  plaintiff 
and  defendant,  by  which  on  their  receiving  the  ties  they 
were  bound  to  pay  him  for  them,  which  meuns,  in  faet,  on 
the  simple  production  of  an  order  or  of  orders  from  Burris 
&  Bennett  to  that  amount,  and  on  which  contract  the 
plaintiff  could  have  sued  the  defendant  for  the  full  price  on 
failure  to  honor  the  order  or  orders,  and  therefore  assumed 
that  there  was  evidence  tending  to  show  such  a  contract. 
But  there  was  no  such  evidence.  The  evidence  on  the 
plaintiff's  part  as  to  the  contract  for  the  three  thousand  ties 
was  all  the  other  way.  The  evidence  on  the  defense  as  to 
the  contract  for  them  was  all  from  Beard,  and  precisely  the 
reverse. 

His  testimony  was  in  effect  positive  and  distinct  that 
Woods  agreed  in  his  presence  to  sell  and  deliver  ties  to 
Burris  &  Bennett,  to  be  turned  in  upon  their  contract 
with  the  company,  and  that  no  notice  was  given  to  him  of 
the  alleged  condition  of  the  sale ;  but  that  he  refused  to 
bind  the  company  to  Woods  for  any  of  the  price ;  that,  on 
the  other  hand,  he  only  promised  for  the  company  to  pay 
him  on  the  order  of  Burris  &  Bennett,  provided  that  on  the 
presentation  of  the  orders  Burris  &  Bennett  had  a  credit 
with  the  company  out  of  which  to  satisfy  them.  The  effect 
of  this  was  to  leave  Woods  just  where  he  would  have  stood 


March,  1878.]  MILLIARD  FLUME  Co.  v.  WOODS.  415 

Opinion  of  the  Court—Peck,  J. 

with  the  orders  of  Burris  &  Bennett  in  his  hand,  and  with- 
out any  communication  with  the  company,  except  to  present 
them — that  is  to  say,  the  orders  would  have  operated  as 
assignment  to  him,  when  notice  as  to  company  of  whatever 
funds  upon  their  account  he  would  have  found  in  the  hands 
of  the  company  belonging  to  Burris  &  Bennett  at  the  time 
or  times  of  presenting  the  order.  The  request  was  properly 
denied. 

The  defendant  requested  the  court  to  charge  that  the 
affidavit  of  Sloan  did  not  state  that  Burris  &  Bennett  had 
failed  to  deliver  the  ties,  but  that  they  claimed  that  they 
had  failed  to  deliver  them.  The  request  was  refused,  and 
an  exception  taken.  Had  it  been  a  request  to  charge  the 
jury  as  to  a  correct  legal  proposition,  based  upon  the  affida- 
vit, it  would  have  been  the  duty  of  the  court  to  comply  with 
it.  Again,  had  the  request  been  to  state  to  the  jury  how 
the  affidavits  read  in  a  given  particular,  or  correctly  citing 
it  in  that  particular,  or  to  repeat  to  the  jury  so  much  of  the 
affidavit,  it  would  have  been  discretionary  with  the  court  to 
have  complied  with  the  request  or  not,  the  jury  being  sup- 
posed to  know  the  contents  of  the  document  already;  but 
the  request  was  what  in  this  doubtless  was  an  inadvertence 
on  the  part  of  the  counsel,  who  presented  it  to  misstate  to 
the  jury  the  document  in  the  same  particular ;  for  the  request 
attributed  to  the  affidavit  a  passage  which  it  did  not  contain, 
and  denied  to  it  a  passage  which  it  did  contain.  The  court, 
therefore,  properly  refused  the  request. 

The  defendant  moved  for  a  new  trial  upon  grounds  which 
have  been  disposed  of,  except  the  two  following :  one  that 
the  verdict  was  against  the  weight  of  evidence,  the  other 
that  it  was  excessive.  As  to  the  first  of  these  two  grounds, 
where  an  appellate  court  is  empowered  to  revise  upon  the 
facts,  it  can  never  reverse  them,  simply  because  upon 
the  evidence,  as  submitted  to  it,  it  would  have  arrived  at  a 
different  conclusion,  and  can  only  reverse  where  the  verdict 
— or  if  the  trial  was  by  court,  Avithout  a  jury,  the  findings 
be^ow,  were  so  clearly  against  the  weight  of  evidence  that 


41G  MILLIARD  FLUME  Co.  v.  WOODS.       [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

no  mind  of  fair  intelligence,  faithfully  exercised,  can  be 
reasonably  supposed  to  have  arrived  at  the  result  which  is 
complained  of,  or  to  state  the  rule  in  a  different  form,  but 
as  conveying  the  same  idea,  where  the  evidence  to  such  a 
mind,  so  exercised,  tends  to  an  opposite  conclusion. 

This  rule  is  not  simply  founded  in  the  habitual  respect 
which  is  due  from  the  appellate  to  the  inferior  court,  but  in 
the  very  necessities  of  justice  a  less  stringent  rule  would 
inevitably  invite  every  appellant  to  a  new  trial  upon  the 
facts  in  the  appellate  court.  We  are  clear  upon  two  simple 
considerations,  without  alluding  to  other  significant  ones, 
that  Woods  was  entitled  to  recover.  The  evidence  of  the 
defense,  though  not  necessarily  going  so  far,  pretty  plainly 
indicates  that  Woods  wanted  security  before  he  parted  with 
his  title,  and  is  positive  and  full  that  the  company  refused 
to  give  any,  and  wanted  his  ties  without  incurring  any  risk 
to  him  for  them.  It  certainly  would  have  been  remarkable 
if  Woods  had  still  parted  with  his  title  to  vendees,  whose 
responsibility  he  distrusted,  upon  a  sure  chance  for  possible 
funds  of  theirs  in  the  company's  hands,  over  which  he  had 
no  control.  This  rather  strengthens  the  theory  of  a  condi- 
tional sale.  But,  further,  Woods  and  Bennett  testify  fully 
and  distinctly  to  the  conditional  sale.  The  only  adverse 
witness  on  that  point  was  Beard;  the  plaintiff  was  inter- 
ested, but  Beard  was  an  agent  of  the  defendant,  and  Ben- 
nett disinterested ;  apparently,  the  fair  balance  of  testimony 
was  in  favor  of  a  conditional  sale. 

As  to  the  second  of  these  two  grounds,  the  market  price 
when  the  company  sold  to  Coe  &  Carter  these  ties,  was  not 
less  than  twenty  cents  a  tie  ;  that,  with  interest  at  date  of  the 
verdict,  would  have  brought  the  recovery  up  to  about  six 
hundred  and  fifty  dollars.  The  verdict  at  five  hundred  and 
forty-two  dollars  and  fifty  cents  can  be  accounted  for 
only  upon  the  supposition  that  the  jury  allowed  something 
as  paid  to  Woods  by  Beard.  We  have  a  grave  doubt 
whether  the  allowance  was  proper,  and  whether  the  verdict 
was  not  too  small.  If  that  be  so,  this  error  of  the  jury  was 


March,  1878.]  LEE  v.  COOK.  417 

Argument  for  Defendants. 

a  clear  gain  to  the  defendant.     We  see   no   excess  in  the 
verdict. 

The  exceptions  to  the  order  overruling  the  motion  for  a 
new  trial  is  thus  disposed  of,  and  the  judgment  below 
affirmed,  but  without  the  five  per  cent,  allowance  applicable 
to  dilatory  appeals. 


LEE  v.  COOK  AND  COREY. 

CONSTKUCTION  OF  STATUTES. — A  law  passed  either  restricting  the  time 
of  the  commencement  of  an  action  or  proceedings  in  an  appellate 
court  should  be  liberally  construed  and  should  take  effect  from  the 
date  of  its  passage.  It  should  not  be  construed  as  retroactive,  but 
as  applying  to  future  causes,  and  the  courts  should  not  permit  it  to 
injure  the  rights  of  involuntary  and  innocent  parties.  The  approved 
rule  is  "  that  the  new  statute  affects  only  cases  which  arise  after 
it  takes  effect,  leaving  old  cases  subject  to  the  old,  new  cases  sub- 
ject to  the  new  act." 

ERROR  to  the  District  Court  of  Uinta  County. 

A  motion  was.j  made  by  the  defendants  in  error  to  dismiss 
the  proceedings  in  error  upon  the  grounds  :  First,  that  such 
proceedings  were  not  commenced  within  one  year  from  the 
entry  of  judgment,  as  required  by  the  statute  as  amended ; 
second,  that  the  bill  of  exceptions  was  not  signed  and  filed 
within  the  time  prescribed  by  law. 

E.  P.  Johnaon,  for  the  plaintiff  in  error,  cited:  Laws  of 
Wyoming,  1877,  23;  Civil  Code,  522;  17  Wallace,  599; 
Cooley's  Const.  Lim.  286-87,  381-82  ;  Civil  Code,  sec,  300  ; 
Walton  v.  U.  £,  9  Wheat.  651 ;  Irwin  v.  Brown,  6  Ohio  St. 
12;  4  Ohio  St.  500;  Gump.  Laws  of  Wyoming,  598. 

IF.  W.  Cortlett,  opposed,  cited  :  Comp.  Laws  of  Wyoming, 
BOO,  303  ;  Cooley's  Const.  Lim.  370  ;  Price  v.  Mbtt,  52  Penn. 
St.  315-16  ;  Philadelphia  v.  Ferry,  R.  C.  52,  177  ;  Marsh  v. 
Chesnut,  14  111.  223  ;  Thames  Manufacturing  Co.  \.  Lathrop, 
7  Conn.  550 ;  Warren  R.  R.  Co.  v.  Belvedere,  35  N.  J.  584 ; 
27 


418  LEE  v.  COOK.  [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

Clark  v.  Hall,  19  Mich.  356 ;  Potter's  Dwarris,  163,  166  ; 
Cooley  on  Taxation,  221-22  ;  Sohn  v.  Waterson,  17  Wallace, 
596  ;  U.  S.  v.  Heth,  3  Cranch,  413 ;  Hawley  v.  Tyler,  2  Wal- 
lace, 347 ;  Ross  v.  Duval,  13  Peters,  62 ;  Lewis  v.  Lewis,  7 
Howard,  778  ;  Murray  v.  Gibson,  15  Id.  421. 

By  the  Court,  PECK,  J.  The  first  objection  alleged  in  the 
motion  is,  that  the  appellate  proceedings  was  not  instituted 
within  a  year  after  the  rendition  of  the  judgment  below. 
That  judgment  was  rendered  on  the  twelfth  day  of  Febru- 
ary, 1877,  the  statute  then  in  force  limiting  the  period  for 
the  prosecution  of  appeals  to  this  court  at  section  522,  page 
107  of  the  Comp.  Laws,  declared :  "  No  proceeding  for  re- 
versing, vacating  or  modifying  judgments  or  final  orders, 
shall  be  commenced  unless  within  three  years  from  the  ren- 
dition of  the  judgment  or  making  of  that  order." 

The  act  of  December  15,  1877,  page  23  of  the  laws  of 
1875,  substitutes  one  year  in  the  place  of  three,  in  the  prior 
act  the  liberal  reading  of  its  extended  text,  therefore,  be- 
ing :  "  No  proceeding  for  reversion  or  vacating  or  modifying 
judgments  or  final  orders  shall  be  commenced,  unless  within 
one  year  from  the  rendition  of  the  judgment  or  making  of 
the  order." 

This  act  declares  that  it  shall  take  effect  from  December 
15,  1877.  The  present  writ  of  error  was  issued  on  Febru- 
ary 18,  1878.  If  the  new  statute  is  to  be  construed  literally, 
it  is  to  receive  a  retroactive  operation,  and  the  right  of 
appeal  upon  the  present  judgment  was  barred  on  Febru- 
ary 12,  1878,  six  days  before  the  appellate  writ  was  issued, 
if  the  statute  is  to  receive  a  prospective  operation,  that  right 
was  not  barred  when  the  writ  was  issued. 

The  effect  of  retrospective  remedies  is  inevitably  to  dis- 
turb the  interests  of  involuntary  and  innocent  parties,  and 
to  create  general  distrust  of  legislation.  Hence,  it  is  the 
violent  presumption  of  the  court,  that  whatever  language  a 
legislature  may  use  in  a  remedial  statute,  it  intends  for  the 
statute  only  a  future  operation,  and  the  presumption  will 


March,  1878.]  LEE  v.  COOK.  419 

Opinion  of  the  Court — Peck,  J. 

yield  only  when  it  is  impossible  to  avoid  a  retrospective 
operation.  The  courts  uniformly  agree  in  this  principle,  and 
whatever  differences  they  may  exhibit  in  its  application, 
must  be  attributed  to  the  purpose  of  adhering  to,  not  of 
departing  from,  the  principle.  When  the  new  statute  was 
passed  there  were  doubtless  numerous  judgments  of  the  dis- 
trict courts  of  the  territory  as  to  which  the  fii-st  year  from 
their  rendition  expired  on  December  15,  1877,  or  was  so 
nearly  expired  on  that  day  as  to  leave  no  opportunity  for 
an  appeal,  provided  the  right  of  appeal  was  limited  to  a 
year  from  the  rendition  of  the  judgment.  This  construction 
bars  the  right  of  appeal  upon  these  judgments,  and  turns 
the  statute  into  simply  capricious  and  oppressive  legisla- 
tion. Such  mischief  sufficiently  illustrates  the  necessity 
and  virtue  of  the  principle  above  stated,  and  the  duty  of 
the  courts  rigidly  to  adhere  to  it.  We  see  no  reason  for 
withholding  the  application  of  the  principle  from  the  pres- 
ent case. 

Upon  this  subject,  and  to  protect  existing  interests  from 
disturbance  by  subsequent  remedial  legislation,  the  deci- 
sions constitute  those  general  classes :  all  concurring  in  the 
rule,  and  differing  only  in  the  methods  of  adjusting  and  ap- 
plying it.  One  of  these  classes  holds  that  when  claims 
have  not  been  barred  under  the  prior  act,  they  are  to  be 
allowed  a  reasonable  time  under  the  subsequent  acts  before 
being  barred  by  it,  which  time  the  court  will  determine  ;  a 
class  of  decisions  that  is  merely  so  much  judicial  legisla- 
tion. Another  class  holds  that  the  new  statute  shall 
operate  from  its  date  upon  cases  which,  under  the  old,  are 
unbarred,  thus  as  to  those  cases  giving  the  new  statute 
operation,  not  from  the  accruing  of  the  cause  of  action,  a 
right  of  appeal  as  provided  in  the  new  act,  but  from  the 
date  of  the  act ;  a  class  of  decisions  which  we  cannot  say 
accords  with  our  view  of  sound  reasoning,  however  much  it 
may  be  our  duty  to  respect  them  as  imposing  upon  us  a 
rule.  The  third  of  these  classes  holds  that  the  new  statute 
affects  only  cases  which  arise  after  it  takes  effect,  leaving 


4UO  LEE  v.  COOK.  [Sup.  Ct. 

Opinion  of  the  Court — Peck,  J. 

old  cases  subject  to  the  old,  new  cases  subject  to  the  new 
act,  disturbing  neither  private  interests  nor  public  confi- 
dence, and  adhering  to  the  principle  in  its  integrity.  The 
case  of  Sohn  v.  Waterson,  17  Wallace,  596,  presents  a  striking 
illustration  of  the  tenacity  with  which  the  courts  hold  to 
the  principle,  and  prescribes  an  imperative  rule  to  this 
court.  The  case  involved  the  construction  of  a  Kansas 
statute  reading :  "  All  actions  founded  on  a  promissory 
note,  bill  of  exchange,  writing,  obligatory  bond,  contract, 
judgment,  decree,  or  other  liability  rendered  beyond  the 
limit  of  this  territory,  shall  be  commenced  within  two  years 
next  after  the  cause  or  right  of  action  shall  have  accrued, 
and  not  after." 

Sohn  obtained  a  judgment  against  Waterson  in  1854-,  in 
Ohio  ;  the  act  was  passed  in  1859,  and  Sohn  sued  Waterson 
on  the  judgment,  in  Kansas,  in  1876.  Waterson  pleaded  the 
statute,  Sohn  demurred,  and  thus  the  question  was  brought 
before  the  United  States  supreme  court.  This  expression 
in  the  statute,  "  All  actions,  or  any  cause  of  action,  shall 
be  commenced  within  two  years  after  its  accruing,  and  not 
after,"  plainly  signified,  by  a  correct  non-professional  read- 
ing, an  unlimited  comprehensiveness,  and  embraced  as  well 
past  as  future  cases  ;  but  often  the  moral  and  actual  intent 
of  a  statute  is  one  thing,  the  presumed  and  legal  another ; 
and  the  latter  is  to  be  enforced  by  the  courts  from  the  ne- 
cessities of  justice.  The  Wyoming  statute,  however,  does 
not  seem  to  us  to  be  justly  obnoxious  to  this  extreme  re- 
mark, construed  by  its  moral  intent.  It  was  plain  that 
the  Kansas  act  was  simply  a  piece  of  vicious  legislation, 
passed  in  the  interest  of  repudiation  ;  but,  judged  by  its 
legal  intent,  it  contemplated  only  a  prospective  operation. 
The  supreme  court  of  the  United  States,  affirming  the  judg- 
ment below,  held  it  to  be  prospective,  operating  from  its 
date  only ;  thus  by  constructions  discarding  one  clause  from 
the  act  and  substituting  another,  converting  the  clause, 
"two  years  next  after  the  cause  or  light  of  action  shall 
have  accrued,"  into  the  clause,  "  two  years  next  after  the 


March,  1878.]  LEE  ».  COOK.  421 

Opinion  of  the  Court — Peck,  J. 

act  takes  effect."  In  its  reasoning,  the  court  lield  that  its 
decision  was  necessary  to  keep  the  statute  from  impinging 
upon  the  obligations  of  a  contract  j  but  that  is  only  a  part 
of  the  objection  which  constitutes  the  boon  of  the  prin- 
ciple, that  confines  a  limitation  act  to  a  prospective  opera- 
tion. The  spirit  of  the  principle  and  the  necessities  of 
justice  equally  demand  that  the  act  should  not  be  allowed 
to  impinge  upon  any  existing  interest,  though  (true  it  is 
tluit)  the  inconsistency  of  the  methods  adopted  by  the 
courts  to  sustain  the  principle  and  prevent  the  mischief 
consequent  upon  a  retrospective  operation,  deprives  the 
principle  of  full  effectiveness ;  but  the  courts,  uniformly 
and  indiscriminately  apply  it  to  the  protecting  of  all  exist- 
ing interests,  whether  embraced  in,  or  represented  by, 
contracts,  remedies,  claims  of  public  servants  for  com- 
pensation, taxes,  or  other  matters.  Moreover,  the  court,  in 
Sohn  v.  Water  son,  did  not  confine  the  ground  of  its  decision 
to  the  objection  that  allowing  to  the  Kansas  statute  retro- 
spective effect  would  involve  a  conflict  with  the  federal 
constitution,  but  put  it  as  well  on  the  broad  principle  which 
we  have  explained.  This  is  clear,  both  from  the  text  of  the 
opinion  and  >ts  citations.  We  therefore  hold  that  the  first 
objection  presented  by  this  motion  is  not  well  taken. 

The  second  objection  alleged  in  the  motion  is,  that  there 
is  in  the  record  no  bill  of  exceptions  allowed  or  signed  or 
filed  within  the  time  prescribed  for  filing  of  a  bill.  The 
objection  seems  to  assume,  judging  from  the  argument  urged 
in  its  support,  that  the  signing  of  a  bill  which  meant  its 
allowance  and  its  filing  are  contemporaneous  acts.  We  re- 
gard them  as  distinct  and  successive.  There  appears  in  the 
transcript  what  purports  to  be  a  bill  of  exceptions,  under 
the  date  and  heading  of  the  January  term  for  1877  of  the 
district  court,  sotting  forth  all  the  proceedings  below,  from 
the  commencement  of  the  trial  to  the  allowance  of  the  bill, 
both  inclusive,  these  proceedings  embracing  the  judgment 
and  the  bill  signed  and  allowed  in  form.  Thus  the  tran- 
script explicitly  states  that  the  bill  was  duly  allowed  at  that 


422  LEE  v.  COOK.  [Sup.  Ct. 


Opinion  of  the  Court — Peck  J. 


term  and  the  term  of  the  judgment.  Another  part  of  the 
transcript  shows  that  the  allowance  must  have  been  made  as 
late  as  February  12,  as  on  that  day  the  motion  for  a  new 
trial  was  decided  and  final  judgment  below  rendered ;  but 
whether  the  allowance  was  made  on  or  after  that  date  does 
not  appear,  nor  is  its  particular  date  in  the  term  material. 
Enough  appears  to  show  that  the  bill  was  allowed  in  strict 
conformity  with  sections  300  and  303,  at  page  71  of  the 
Comp.  Laws.  Hence  the  first  ground  of  the  second  objec- 
tion is  not  well  taken,  and  the  third  objection,  namely,  that 
no  bill  of  exceptions  was  allowed  at  the  term  of  the  judg- 
ment, in  like  manner  is  disposed  of ;  this  brings  us  to  the 
remainder  of  the  second  objection,  which  relates  to  the  filing 
of  the  bill.  It  appears  that  the  term  ended  on  February 
16,  and  that  the  bill  was  not  filed  until  June  20,  1877. 
Whether  or  not  it  was  seasonably  filed  depends  upon  the 
construction  to  be  given  to  the  words  "  whereupon  "  in  said 
section  303,  which,  after  defining  the  case  in  which  a  bill  of 
exceptions  shall  be  presented  for  allowance,  proceeds  thus : 
"If  true,  it  shall  be  the  duty  of  the  judge  or  court  before 
whom  the  case  was  or  is  being  tried  to  allow  and  sign  it, 
whereupon  it  shall  be  filed  with  the  pleadings,  as  a  part  of 
the  record.  The  provision  could  not  have  intended  a  filing 
so  instant  with  the  allowance,  a  contemporaneous  filing 
which  would  necessarily  involve  the  idea  of  a  statutory  filing 
by  operation  of  the  statute. 

The  term  ''filing"  in  the  text  must  mean  what  it  means 
spread  here  in  the  statute,  namely,  an  act  of  the  clerk,  and 
therefore  an  after  act ;  and  this  is  the  more  clear  from  the 
fact  that  under  sections  300  and  303,  the  allowance  may  be 
made  by  the  judge  at  chambers  in  term  time  or  vacation 
where  he  is  not  usually  or  necessarily  attended  by  the  clerk, 
as  he  must  be  in  open  court ;  chamber  business  is  con- 
structively done  at  the  court-house.  It  may  actually  be 
done  anywhere  within  the  district  therefor  at  a  point  within 
it  the  remotest  from  the  court-house ;  more  or  less  of  an 
interval  must  elapse  between  the  allowance  and  its  delivery 


March,  1878.]  LEE  v.  COOK.  423 

Opinion  of  the  Court — Peck,  J. 

to  the  clerk,  no  prejudice  to  the  integrity  of  the  allowance 
in  the  meantime  can  be  anticipated,  because  it  is  in  the 
nature  of  a  final  order  and  must  be  retained  by  the  judge 
for  filing ;  and  it  is  to  be  presumed  that  he  will  transmit  it 
to  the  clerk  for  that  purpose  in  due  course.  Again,  "where- 
upon "  as  it  stands  in  the  text  plainly  imports  subsequence, 
this  is  one  of  its  lexicographic  significations,  it  denoting 
sequence,  succession,  order  of  action,  relation,  something 
done  with  reference  to  something  previously  done,  therefore 
subsequence.  So  too  "  whereupon,"  "  upon  which,"  "after 
which,"  are  interchangeable  terms.  Hence  the  filing  pre- 
scribed by  section  303  is  to  be  an  act  subsequent  to  the 
allowance,  and  when  made  takes  effect  as  of  the  allowance. 
Thus  the  term  "  whereupon  "  means  in  the  act  no  more  than, 
after  wliich,  and  is  intended  to  secure  a  prior  allowance  and 
subsequent  filing  of  the  exceptions.  But  how  long  and  sub- 
sequent? Must  it  be  forthwith,  or  may  it  be  a  long  time 
prior  to  sending  up  the  record,  it  being  essential  only  to 
laying  or  completing  the  basis  of  an  appeal.  The  statute 
is  remedial  and  it  is  our  duty  to  give  to  it  an  enlarged,  un- 
less compelled  to  give  to  it  a  narrow,  construction.  We  can 
see  no  reason  why  a  filing-  at  any  time  intermediate  the 
allowance,  and  the  sending  up  of  the  record  is  not  regular, 
and,  therefore,  hold  that  this  ground  of  the  second  objection 
is  not  well  taken. 

The  fourth  and  last  objection  alleged  in  the  motion  is  that 
110  assignment  of  errors  was  filed  on  the  return  of  the  writ 
of  error.  This  objection  depends  upon  the  construction  of 
the  word  "  upon,"  in  section  40  and  page  59  of  the  Comp. 
Laws,  which  section  declares  that  "the  plaintiff  in  error 
shall,  upon  the  return  of  the  writ,  file  with  the  record  an 
assignment  of  the  errors  complained  of.''  "  Upon  "  means 
at  the  time  of  or  after  a  given  thing.  To  hold  that  the 
statute  imposes  upon  the  plaintiff  in  error  this  duty  to  be 
performed  contemporaneously  with  the  return  would  be  to 
defeat  the  statute  because  such  a  duty  would  be  impractic- 
able;  Jie  writ  of  error  as  returned  necessarily,  reaching  the 


LEE  v.  COOK.  [Sup.  Ct. 


Opinion  of  the  Court — Peck,  J. 


office  of  the  appellate  clerk,  before  its  return  can  be  known 
to  the  plaintiff  in  error.  To  hold  that  the  assignment  must 
be  made  forthwith  after  the  writ  has  so  reached  that  office, 
would  be  to  impose  a  duty,  often  difficult  and  burdensome, 
and  always  unnecessarily  particular  for  the  desired  purpose. 

Nothing  in  the  letter  or  object  of  the  statute  calls  for  this 
narrow  construction,  and  it  is  our  duty  to  give  to  it  a  liberal 
one,  and  to  hold,  and  we  do  hold,  that  the  errors  may  be 
assigned  within  a  reasonable  time  after  the  return  ;  therefore, 
at  any  time  before  argument,  unless  the  court  shall,  by  rule, 
prescribe  an  earlier  but  not  a  forthwith  assignment. 

The  motion  to  dismiss  is  overruled. 


INDEX. 


INDEX. 


APPEAL. 

1.  APPEAL— JUSTICES'  COURT.—  Upon,  am  appeal  taken  from  the  court 

of  a  justice  of  the  peace  to  the  district  court,  if  it  appears  that  the 
bond  filed  is  not  in  accordance  with  the  requirements  of  the  statute 
in  such  case  made  and  provided,  the  appeal  may  be  dismissed  on 
motion,  and  judgment  entered  for  the  amount  received  in  the  court 
below.  J»hnnon  v.  Marion^  21. 

2.  FROM  COUNTY  COMMISSIONERS.— The  statutes  of  Wyoming  providing 

for  appeals  from  decisions  of  the  boards  of  county  commissioners  to 
the  district  court,  refer  only  to  cases  first  presented  to  such  boards 
for  adjustment  and  payment.  Boswell  v.  County  Commissioners,  285. 

3.  IDKM. — -A.  person  having  a  claim  agaiusta  county,  is  not,  by  reason  of 

those  statutes,  prevented  from  bringing  an  original  action  to  recover 
the  same  in  the  district  court.  Id. 

4.  IDEM. — He  is  entitled  to  a  choice  of  remedies.     Id. 

BANKRUPTCY. 

1.  BANKRUPTCY. — Assignees  of  a  bankrupt  before  they  can  recover  of 

third  parties  for  an  alleged  fraudulent  purchase  of  property  of  the 
bankrupt  must,  upon  the  trial,  prove  all  the  facts  necessary  to  bring 
such  transaction  within  the  provisions  of  the  bankrupt  act  of  the 
United  States.  This  refers  to  the  question  of  time  as  well  as  to  all 
others.  North  v.  McDonald,  351. 

2.  IDEM. — An  employee  of  a  United  States  marshal  cannot  sustain  action 

against  such  marshal  personally  for  services  rendered  in  taking  care 
of  a  bankrupt's  estate,  but  should  apply  to  the  court  of  bankruptcy 
for  relief.  Rmnsei/  v.  Wolcott,  259. 

3.  IDKM. — If  the   marshal  fraudulently  refuses  to  pay  his  agent  for  ser- 

vices rendered,  he  (the  agent)  may  apply  to  a  court  of  bankruptcy 
for  such  relief  as  he  may  be  entitled  to.  Id. 

4.  IDKM. — Where   a  suit  was   commenced  by  an  employee  of  the  U.  S. 

ruashal  to  recover  compensation  for  taking  charge  of  the  property 
of  a  bankrupt:  Held,  that  a  demurrer  to  the  petition  was  properly 
sustained,  on  the  ground  "  llint  the  court  had  no  jurisdiction  of  the 
person  of  the  defendant  on  the  subject  of  the  action.''  Id. 

427 


428  INDEX. 

BILL  OF  EXCEPTIONS. 

1.  BILL  OF  EXCEPTIONS. — After  a  motion  for  a  new  trial  has   been 

made  and  overruled  by  the  court  below,  and  an  exception  taken 
thereto,  such  party  must  have  his  bill  containing  all  exceptions, 
together  with  the  motion  for  a  new  trial,  signed  or  allowed  by  the 
presiding  judge  of  the  court  below.  Murrin  v.  Ullman,  36. 

2.  IDEM. — If  the  plaintiff  in  error  has  not  proceeded  in  accordance  with 

the  foregoing  rules,  it  is  correct  practice  for  the  defendant  in  error 
to  move  the  court  to  dismiss  the  proceedings  in  error.  Id. 

3.  IDEM. — In  proceedings  in  error  the  record  of  the  court  below  must 

show  that  a  bill  of  exceptions,  containing  the  exceptions  upon  which 
the  plaintiff  in  error  relies,  was  duly  made  up  and  signed  by  the  judge 
of  said  court  within  the  time  limited  by  statute.  Geer  v.  Murrin,  37. 

4.  IDEM. — After  a  motion  for  a  new  trial  has  been  made  and  overruled 

by  the  court  below  and  an  exception  taken  thereto,  such  party  must 
have  his  bill  containing  all  exceptions  upon  which  he  relies,  together 
with  the  motion  for  a  new  trial,  signed  or  allowed  by  the  presiding 
judge  of  the  court  below.  Id. 

5.  IDEM.— If  the  plaintiff  in  error  has  not  proceeded  in  accordance  with 

the  foregoing  rules,  it  is  the  correct  practice  for  the  defendant  in 
error  to  move  the  court  to  dismiss  the  proceedings  in  error.  Id. 

BREACH  OF  CONTRACT. 

BBEACH  OF  CONTRACT — LIQUIDATED  DAMAGES. — In  a  contract  for  the 
transportation  of  freight,  it  was  provided  "  that  in  the  event  of  either 
of  the  parties  failing  to  comply  with  the  terms  of  the  contract,  the 
party  so  failing  was  to  pay  the  other  party  the  sum  of  one  thousand 
dollars,  fixed  and  settled  damages:1'  Held,  that  this  was  not  in- 
tended, nor  to  be  construed  as  meaning  a  penal  sum;  but  as  fixed, 
settled  and  liquidated  damages,  and  the  defendant  was  not  permitted 
to  show  that  the  plaintiff  had  not  sustained  actual  damages  to  that 
amount.  Ivinson  &  Co.  v.  Althrop,  71. 

CHALLENGING  JURORS. 

CHALLENGING  JT'RORS. — Where  the  statutes  prescribe  fully  and  dis- 
tinctly the  qualifications  of  jurors  and  the  points  upon  which  they 
may  be  interrogated  by  counsel,  questions  as  to  entirely  different 
matters  are  not  permissible.  Kinsler  v.  Territory,  112. 

CHANCERY  PRACTICE. 

1.  CHANCERY. — Where  a  bill  of  complaint  in  chancery  showed  upon  its 

face  that  complainant  had  a  remedy  at  common  law:  Held,  that  the 
court  erred  in  not  sustaining  a  general  demurrer  to  the  bill.  Ivin- 
son v.  Hittton,  178. 

2.  IDEM.— Striking  out    certain  words  from  the  original  bill   of  com- 

plaint, especially  where  it  is  not  again  verified,  is  not  an  amendment 
of  such  bill.  Id. 

3.  IDEM.— Neither  is  it  such  an  alteration  or  amendment  as  could  change 


INDEX.  429 

the  jurisdiction  from  a  court  of  common  law  to  a  court  of  chancery. 
Id. 

4.  IDEM. — If  a  demurrer  is  sustained  to  a  bill  of  complaint,  and  com- 
plainant, by  permission  of  the  court,  amends  the  bill,  the  court  has 
no  power  to  limit  the  defendant's  time  to  answer.  That  is  fixed  by 
law.  Id. 

CHANGE  OF  VENUE. 

CHANGE  OF  VENUE. — It  is  the  duty  of  the  district  court,  upon  the  trial 
of  a  criminal  cause,  where  the  proper  affidavit  as  to  the  bias  or 
prejudice  of  the  judge  is  filed  in  time,  to  call  in  another  judge  to 
preside  at  such  trial.  The  statute  in  reference  thereto  is  mandatory 
and  imperative,  and  upon  an  application  properly  made,  it  is  error 
for  the  court  to  refuse,  and  such  error  is  sufficient  to  obtain  a  re- 
versal of  the  judgment.  Hamilton  v.  Territory,  131. 

CHARGE  TO  JURY. 

1.  CHARGE  TO  THE  JURY — VERDICT. — Courts  will  not  interfere  with 

the  verdict,  because  such  verdict  does  not  accord  with  the  exact 
views  of  the  case  taken  by  the  court,  of  the  preponderance  of  evi- 
dence, or  that  the  court  would  have  arrived  at  a  different  conclusion 
from  that  of  the  jury.  Breenan  v.  Heenan,  121. 

2.  IDEM. — Even  if  an  erroneous  charge  to  the  jury  has  been  given,  the 

verdict  will  not  be  disturbed  if  it  clearly  appears  that  no  injustice 
has  been  clone,  or  that  the  jury  have  not  been  misled  thereby  in  the 
finding  of  such  verdict.  Id. 

CHARGE  OF  COURT. 

CHARGE  OF  THE  COURT. — Malice  may  be  presumed  against  the  defend- 
ant on  trial  in  a  criminal  action  to  such  an  extent  that  it  will,  under 
certain  circumstances,  shift  the  burden  of  proof  from  the  prosecu- 
tion to  the  defense  upon  that  particular  question.  Fein  v.  Territory, 
380. 

CITY  WARRANTS. 

CITY  WARRANTS. — The  board  of  trustees  or  managing  officers  of  a  mu- 
nicipal corporation  may  issue  warrants  upon  the  treasury,  to  be 
used  as  evidences  of  indebtedness,  although  there  is  no  money  in 
the  municipal  treasury  at  the  time,  and  although  not  specially 
authorized  so  to  do  by  the  city  charter,  under  which  they  were  pro- 
ceeding. Ifinson  v.  Ifancc,  270. 

COMPOUNDING  FELONIES. 

rNDiNO  FELONIES. — Neither  a  justice  of  the  peace,  prosecuting 
witness,  nor  prosecuting  attorney,  possesses  the  power  to  com- 
promise felonies.  Ivinson  v.  Pease,  277. 


CONSTRUCTION  Of  STATUTES. 

CONSTRUCTION  OF  STATUTES.  —  A  law  passed  either  restricting  the 
time  of  the  commencement  of  an  action  or  proceedings  in  ati  appel- 
late court  should  be  libel-ally  construed  and  should  take  effect  from 
£he  date  of  its  passage.  It  Should  not  be  construed  as  retroactive, 
but  as  applying  to  future  causes,  and  the  courts  should  not  permit 
it  to  injure  the  rights  of  involuntary  and  innocent  parties.  The 
approved  rule  is  "that  the  ne^  statute  affects  only  cases  which 
arise  after  it  takes  effect,  leaving  old  cases  Subject  to  the  old,  new 
subject  to  the  new  act."  Lee  v.  Cook,  417. 


CONTEMPT. 

1.  CONTEMPT.  —  At  common  law  proceedings  for  contempt  cannot  be 

reviewed  by  a  court  of  errors.     Wilson  v.  Territory,  114. 

2.  IDEM.  —  The  legislature  only  can  give  a  defendant  in  such  proceed- 

ings the  right  to  appeal  or  to  a  writ  of  error.     Id. 

3.  IDEM.  —  Where  in  such  a  case  a  writ  of  error  was  improperly  sued  out, 

'a  motion  to  dismiss  the  proceedings  in  error  was  Sustained.     Id. 

4.  Ir/EM.  —  In  proceedings  against  a  party  for  constructive  contempt  an 

attachment  warrant  or  alternative  order  to  show  cause  against  the 
person  of  the  defendant  cannot  be  issued  until  the  proper  affidavit 
has  been  filed  to  give  the  court  jurisdiction.  Wilson  v.  Territory,  155. 

5.  IDEM.^-  Where  an  attachment  was  issued  without  such  affidavit:  Held, 

that  it  was  an  error  which  could  not  be  cured  by  the  subsequent 
"filing  of  an  affidavit.  Id. 

CONTRIBUTION. 

1.  CONTRIBUTION  —  COUNTY  LIABILITIES.  —  The  rule  is  well  established, 

that  where  a  county  has  been  divided  by  an  act  of  the  legislature, 
one  portion  thereof  retaining  the  former  name,  county  seat,  build- 
ings and  organization,  and  all  county  property,  that  such  county  is 
responsible  for  the  entire  indebtedness  of  the  former  county  at  the 
time  of  such  division,  and  that  an  action  will  not  lie  against  the 
new  counties  for  contributions,  unless  special  provision  is  made 
therefore  by  the  legislature  in  the  act  itself.  Co.  Commrs.  v.  Co. 
Commrs.  137. 

2.  IDEM.—  Where  the  legislature  of  Wyoming  territory  organized  two 

new  counties,  and  included  within  their  limits  a  part  of  the  terri- 
tory of  an  existing  county,  but  made  no  provision  for  apportioning 
debts  or  liabilities:  Held,  that  the  old  county,  being  solely  respon- 
sible for  the  debts  and  liabilities  it  had  previously  incurred,  had, 
on  discharging  them,  no  claim  upon  the  new  counties  for  contribu- 
tion. Id. 

COUNTER-CLAIM. 

1.  COUNTER-CLAIM.  —  A  counter  claim  set  up  by  the  defendants  in  an  ac- 
tion can  only  be  maintained  where  it  exists  in  Savor  of  all  the  de- 


INDEX.  431 

fendants  against  the  plaintiffs,  and  each  and  every  of  them.  Great 
West.  Inn.  Co.  v.  Pierce,  45. 

2.  IDEM. — "  Where  a  note  is  on  its  face  joint  or  joint  and  several,  it  is 

conceived  that  evidence  to  show  that  one  maker  is  surety  for  the 
other  is  inadmissible  at  law  if  the  question  arises  between  the  cred- 
itor and  the  surety;  but  evidence  to  that  effect  has  been  received 
when  the  question  arises  between  the  principal  debtor  and  the  sure- 
ties." Id. 

3.  IDEM. — "As  between  the  makers  of  a  promissory  note  and  the  hold- 

ers, all  are  alike  liable,  all  are  principals;  but  as  between  them- 
selves, their  rights  depend  upon  other  questions."  Id. 

4.  IDEM. — A  counter-claim  cannot  be  maintained  by  one  alone  of  sev- 

eral'defendants,  who  are  all  joint  and  several  makers  of  a  promis- 
sory note,  against  the  holder  and  payee,  although  such  defendant 
offer  to  prove  that  he  alone  is  the  principal,  and  the  other  defend- 
ants simply  sureties.  Id. 

CRIMINAL  PRACTICE. 

CRIMINAL  PRACTICE  EVIDENCE— NEW  TRIAL. — In  proceedings  in  error 
in  a  criminal  case  to  obtain  the  review  of  the  orders,  rulings  and 
decisions  of  the  lower  court,  and  one  of  the  errors  assigned  being: 
"  That  the  verdict  is  not  sustained  by  sufficient  evidence  and  is  con- 
trary to  law,"  the  record  must  show  all  the  evidence  to  enable  this 
court  to  pass  upon  the  question.  Phillips  v.  Territory,  82. 

CRIMINAL  PROCEDURE. 

CRIMINAL  PROCEDURE. — An  indictment  having  been  found  against  the 
plaintiff  in  error  under  the  section  of  the  U.  S.  statutes  which  pro- 
vides: "  And  any  brewer  who  shall  neglect  to  keep  books,  *  *  * 
shall  for  every  such  neglect  forfeit  and  pay  the  sum  of  three  hun- 
dred dollars:  "  Held,  on  the  heaving  of  the  cause  in  this  court,  that 
the  prosecution  should  have  proceeded  by  civil  action,  and  not  by 
indictment.  Fein  v.  U.  S.,  246. 

CUSTOM. 

1.  CUSTOM— USAGE. — The  general  custom  or  rules  of  a  railroad  com- 
pany, or  of  various  companies,  cannot  affeet  a  special  contract  or 
modify  the  s;nne,  where  such  contract  contains  no  ambiguity  of 
terms.  Murthi  \.  T.  /'.  R.  7i'.  Co.,  14:]. 

•J.  IDEM.— Neither  is  proof  of  such  general  custom  or  usage  permissi- 
ble, unless  it  is  also  shown  that  such  has  been  so  in  the  dealings  of 
such  companies  with  outside  parties,  they  understanding  and  con- 
senting thereto.  Id. 

',',.  IDKM.— It  must  be  a  general  usage  between  the  company  and  those 
who  contract  with  it.  I<1. 

4.  II>I:M. — While  the  freight  books  of  a  company  may  be  used  to  refresh 
the  memory  of  a  witness  who  lias  made  entries  in  them,  such  books 
in  themselves  are  no  evidence,  and  were  properly  excluded.  Id. 


432  INDEX. 

DAMAGES. 

1.  DAMAGES,  RAILROAD  COMPANIES. — A  railroad  company  is  not  re- 

sponsible in  damages  to  a  person  injured  by  an  accident  to  a  train 
passing  over  a  portion  of  the  road  not  completed,  when  said  train 
is  solely  under  the  charge  of  the  contractors  building  the  road,  and 
receiving  all  the  profits  thereof,  that  portion  of  the  road  being  still 
unaccepted  by  the  company.  If  any  one  is  liable  for  damages  it  is 
the  contractors  and  not  the  railroad  company.  U.  P.  E.  E.  Co.  v. 
House,  27. 

2.  IDEM. — Where  suits  are  brought  for  injuries  arising  from  accidents 

on  railroads,  exemplary,  punitive  or  vindictive  damages  should  not 
be  awarded,  except  in  extreme  cases.  The  general  rule  is,  that  suf- 
ficient damagess  should  be  given  to  fully  compensate  the  plaintiff 
for  his  loss  of  time  and  suffering.  Id. 

DEMURRER. 

1.  DEMURRER. — Where  a  petition  upon  its  face  shows  that  the  claim 

upon  which  the  action  is  brought  is  barred  by  the  statute  of  limi- 
tations, or  that  a  plea  of  that  statute  may  be  successfully  inter- 
posed, a  demurrer  to  the  petition  on  that  ground  should  be  sus- 
tained. Bonnifield  v.  Price,  172. 

2.  IDEM. — Where  the  demurrer  is  sustained  or  overruled,  it  lies  solely 

in  the  discretion  of  the  court  whether  or  not  to  permit  either  party 
to  amend  his  pleadings.  Id. 

3.  IDEM. — Where  a  demurrer  in  one  action  was  sustained  to  the  plain- 

tiff's petition,  for  the  reason  that  it  appeared  from  the  face  of 
the  petition  that  the  cause  of  action  was  barred  by  the  statute  of 
limitations,  and  a  second'action  was  commenced  for  the  same  cause 
of  action,  but  with  the  petition  so  drawn  as  not  to  raise  upon  its 
face  the  question  of  the  statute  of  limitations:  Held,  that  the  judg- 
ment upon  the  demurrer  in  the  first  suit  was  no  bar  to  the  second 
proceeding.  Bonnifield  v.  Price,  233. 

4.  IDEM. — Where  the  defendant's  demurrer  has  been  overruled,  a  rea- 

sonable time  will  be  given  him  to  answer,  unless  it  appear  that  such 
demurrer  was  interposed  in  bad  faith;  but  such  time  to  answer  will 
not  be  extended,  except  for  causes  over  which  the  defendant  could 
have  had  no  control.  Martin  et  ul.  v.  Moore,  22. 

5.  IDEM. — The  matter  lies  entirely  within  the  discretion  of  the  court.  Id. 

EJECTMENT. 

EJECTMENT. — Under  the  statutes  of  Wyoming  territory  it  is  not  neces- 
sary that  the  plaintiff  is  the  owner  of  the  real  estate  in  question  in 
fee-simple  absolute.  It  is  sufficient  if  he  is  entitled  to  the  legal  or 
equitable  estate  therein.  Freeman  v.  Crout,  364. 

ESTOPPEL. 

ESTOPPEL — PLEA  IN  BAR. — Defendant  in  error  su-ed  the  plaintiff  in 
error  for  one  year's  rent  of  certain  real  estate.  Upon  the  trial  it 


INDEX.  433 

appeared  that  the  year  bad  not  expired,  and  that  only  a  portion  of 
the  rent  was  due,  and  the  court  ordered  judgment  for  that  amount 
only.  Suit  was  subsequently  commenced  between  the  same  parties 
for  the  remainder:  Held,  that  the  judgment  in  the  first  case,  al- 
though the  petition  therein  prayed  for  all  the  rent,  was  no  bar  to 
the  prosecution  of  the  second  suit.  Bath  v.  Lindermyer,  240. 

EVIDENCE. 

1.  EVIDENCE — VERDICT. — If  there  is  evidence  before  a  jury  tending  to 

prove  the  material  allegations  of  the  complaint,  and  sufficient  facts 
to  establish  the  cause  of  action,  the  verdict  should  be  sustained, 
unless  it  appears  to  the  appellate  court  that  the  jury  has  either 
misunderstood  the  evidence  or  that  the  jurors  have  been  influenced 
by  bias  or  prejudice.  Where  there  is  no  evidence,  however,  to  sus- 
tain the  verdict,  or  where  it  has  been  found  directly  contrary  to 
the  evidence,  it  should  be  set  aside  and  a  new  trial  granted.  W. 
U.  T.  Co.  v.  Monseau,  17. 

2.  IDEM. — The  best  evidence  which  the  nature  of  the  case  will  admit 

of,  and  which  can  be  obtained  by  the  party,  should  be  adduced. 
McGlinchey  v.  Morrison,  105. 

3.  IDEM. — Secondary  evidence  should  never  be  admitted,  except  where 

it  is  impossible  to  procure  testimony  of  a  higher  and  better  charac- 
ter. Id. 

4.  IDEM. — A  copy  of  an  execution,  under  which  goods  have  been  levied 

upon,  made  from  memory,  although  verified,  is  inadmissible.     Id. 

5.  ATTACHMENT. — Where  certain  parties  attached  the  goods  of  W.  as 

the  property  of  W.  &  Co.,  and  W.  replevied  such  property  on  the 
ground  that  he  was  not  a  member  of  such  firm:  Held,  that  on  the 
trial  of  the  suit  in  replevin,  the  evidence  of  the  statements  on  vari- 
ous occasions  by  the  plaintiff  W.,  that  lie  was  a  member  of  such 
firm,  was  admissible;  and  that  the  exclusion  by  the  court  of  such 
testimony  was  a  fatal  error.  Cnrr  v.  Wright,  157. 

6.  IDEM. — An  affidavit  made  in  the  action  by  a  witness  on  a  former  oc- 

casion, simply  showing  contradictory  statements,  cannot  be  intro- 
duced as  evidence  on  the  cross-examination  of  such  witness,  except 
for  the  purpose  of  impeachment.  Dayton  v.  Hank,  263. 

7.  IDEM. — To  impeach  the  testimony  of  a  witness  in  that  manner,  it  is 

necessary  to  call  the  attention  of  the  witness  to  his  previous  state- 
ments, by  definitely  fixing  time,  place  and  circumstances.  Id. 

8.  REPLEVIN. — Where  a  sheriff  was  sued  in  replevin  for  property  taken 

by  him  as  such  sheriff,  under  certain  writs  of  attachment:  Held, 
that  it  was  unnecessary  for  him  to  prove  on  the  defense  that  he  was 
in  every  respect  the  qualified  sheriff  of  the  county;  it  was  sufficient 
to  pxove  that  he  was  the  sheriff  de  facto  of  such  county.  Id. 

9.  IDEM. — Xor  that  it  was  necessary  for  him  to  prove,  in  order  to  estab- 

lish his  right  to  hold  the  property  under  such  writs,  that  the  at- 
tachments were  issued  on  valid  and  bonajide  claims.  7c/. 

10.  IDEM. — The  sheriff  need  not  go  behind  the  face  of  the  papers.     If 

•2$ 


434  INDEX. 

they  have  been  issued  in  due  form  from  a  court  of  competent  juris- 
diction, be  will  be  protected.     Id. 

11.  IDEM. — The  plaintiff  in  a  suit  in  replevin  must  prove  the  ownership, 
in  a  right  of  possession  to  the  property,  by  a  preponderance  of  evi- 
dence.    Id. 

12.  IDEM.— He  cannot  make  out  his  case  by  attacking  the  defendant's 
title.     Id. 

13.  IDEM. — Although,  upon  a  trial  of  a  cause,  immaterial  evidence  is  ad- 
mitted to  the  jury,  the  court  of  errors  will  not  reverse  the  judg- 
ment, unless  it  clearly  appears  that  the  opposite  party  has  been 
prejudiced  or  injured  thereby.     Alsop  v.  Huttan,  285. 

14.  NEW  TRIAL. — The  court  will  not  set  aside  a  verdict  and  grant  a  new 
trial  upon  the  sole  ground  that  the  verdict  is  not  sustained  by  suffi- 
cient evidence,  unless  it  is  manifest  that  the  jury  acted  in  a  total 
disregard  of  the  evidence,  or  acted  against  the  great  weight  of  the 
evidence  to  such  an  extent  as  to  show  that  the  verdict  was  the 
result  of  improper  motives.     Bank  v.  Dayton,  339. 

15.  PREPONDERANCE  OF. — It  is  the  province  of  a  jury,  and  of  the  court 
in  the  absence  of  a  jury,  to  determine  upon  which  side  of  the  case 
the  weight  or  preponderance  of  evidence  is  found;  and  it  must  be 
shown  affirnatively  by  the  plaintiff  in  error  that  the  verdict  was  con- 
trary to  the  evidence,  or  was  not  sustained  by  sufficient  evidence, 
or  was  contrary  to  law,  before  this  court  will  interfere      Byrne  v. 
Myers,  355. 

16.  IDEM. — A  deed  or  conveyance  executed  in  another  territory  or  state 
according  to  the  laws  of  that  territory  or  state,  of  lands  in  Wyom- 
ing, is  executed  according  to  the  laws  of  Wyoming,  if  pertinent  and 
relevant,  should  be  admitted  in  evidence,  and  it  is  error  for  the 
court  to  refuse  testimony  tending  to  prove  what  the  law  is  in  refer- 
ence thereto  in  such  other  state  or  territory.     Freeman  v.  Cront,  364. 

17.  BOOKS  OF  ACCOUNT. — Where  a  witness  testified  of  his  own  knowl- 
edge that  goods  were  delivered,  and  th;it  the  entries  therefor  were 
made  at  the  same  time  by  his  clerks  in  his  books  of  account:  Held, 
that  the  delivery  and  charges  being  contemporaneous,  it  was  imma- 
terial whether  the  testimony  of  such  clerks  was  introduced  or  not, 
as  their  testimony  would  only  go  to  the  weight  of  the  evidence. 
Dear  v.  Tracy,  303. 

18.  IDEM. — Although  an  error  was  committed  by  the  district  court  in 
admitting  certain  documentary  evidence,  yet  where  it  clearly  ap- 
pears from   the  record  that  the  jury  could  not  have  been  misled 
thereby,  the  judgment  of  the  court  below  should  not  be  reversed 
on  that  ground.     HiUiard  Flume  and  Lumber  Co.  v.  ITootZs,  400. 

FEES. 

FEES. — A  county  treasurer,  under  the  statute  of  Wyoming,  is  not  en- 
titled to  a  percentage  for  paying  over  at  the  expiration  of  his  term 
to  his  successor  the  funds  of  the  county  then  remaining  in  his  hands 
as  such  treasurer.  He  should  only  receive  a  percentage  on  the 


INDEX.  435 

money  paid  out  by  him  while  i*erfortning  the  ordinary  duties  of 
his  office.  Pease  v.  Territory,  396. 

FOREIGN  JUDGMENTS. 

FOREIGN  JUDGMENTS — PLEADING. — In  an  action  upon  a  foreign  judg- 
ment, an  allegation  in  the  complaint  is  sufficient  if  it  states  the 
name  of  the  court  in  which  such  judgment  was  obtained,  and  that 
the  same  was  a  court  of  competent  jurisdiction,  without  alleging 
the  actions  and  proceedings  thereof.  Martin  et  ul.  v.  Moore,  22. 

INDICTMENT. 

1.  INDICTMENT — PnooF.^It  is  immaterial  what  date  is  alleged  in  an 

indictment  as  the  day  on  which  a  crime  was  committed,  provided 
such  day  be  prior  to  the  finding  of  the  indictment  and  within  the 
time  prescribed  by  tlie  statute  of  limitations.  Fields  v.  Territory, 
78. 

2.  IDEM. — But  the  rule  as  to  proof  under  an  indictment  is  not  so  liberal 

as  it  must  be  confined  to  a  given  crime  and  to  a  given  time.     Id. 

3.  IDEM. — The  prosecution  on  a  trial  under  an  indictment  so  drawn 

that  it  might  cover  a  dozen  different  offenses  of  the  same  nature, 
after  examining  the  first  witness  as  to  one  offense  on  a  day  certain, 
must  confine  its  proof  to  that  particular  offense,  and  the  admission 
by  the  court  of  evidence  tending  to  prove  other  offenses  is  error.  Id. 

4.  IDEM. — Evidence  of  a  distinct  substantive  offense  cannot  be  admitted 

to  aid  in  proving  the  commission  of  another  offense.     Id. 

5.  CHARGE  OF  COURT. — Under  the  statutes  of  the  territory  of  Wyoming^ 

upon  the  trial  of  an  indictment  for  murder  in  the  first  degree,  it 
is  not  erroneous  for  the  court  to  instruct  the  jury  "that  if  they 
find  from  the  evidence  that  the  homicide  was  perpetrated  pur- 
posely and  maliciously,  but  without  deliberation  and  premedita- 
tion, they  might  and  should  find  the  defendant  guilty  of  murder  in 
the  second  degree."  Phillips  v.  The  Temtory,  82. 

6.  IDEM. — A  conviction  will  not  be  disturbed,  unless  there  be  a  decided 

preponderance  of  evidence  in  favor  of  the  prisoner.     Id. 

7.  IDEM. — A  defendant  in  a  criminal  action  cannot  claim  a  new  trial  on 

the  ground  that  the  jury  found  him  guilty  of  a  lesser  grade  of  the 
offense  charged  in  the  indictment  than  the  evidence  warranted.  Id. 

8.  ALLEGATION'S. —An  indictment  for  an  offense  prohibited  by  statute 

must  allege  sufficient  facts  to  bring  the  offense  within  the  provi- 
sions of  that  special  statute.  A  general  allegation  at  the  close  of  the 
indictment  to  the  effect  that  the  defendant  "was  then  and  there 
unlawfully  and  corruptly  guilty  of  malfeasance,"  is  not  sufficient. 
McCarthy  v.  Territory,  313. 

9.  TERMS  USED. — Under  an  indictment  for  willfully,  maliciously,  etc., 

killing  a  horse:  Held,  that  testimony  tending  to  prove  the  killing 
of  a  gelding  was  properly  admitted.  Fein  v.  Territory,  380. 


436  INDEX. 

INDORSEMENT. 

INDORSEMENT. — Where  a  joint  and  several  note  made  by  the  three  de- 
fendants to  the  order  of  plaintiff  and  another  party,  was  by  that 
party  indorsed  and  transferred  to  the  plaintiff:  Held,  that  the  plain- 
tiff alone  could  bring  suit  on  the  note,  and  that  the  district  court 
did  not  err  in  overruling  a  demurrer  to  plaintiff's  petition,  on  the 
ground  that  "there  was  a  defect  of  parties  plaintiff."  Began  v. 
Jones,  210. 

INJUNCTION. 

INJUNCTION — COLLECTION  OF  TAXES. — Where  the  collection  of  illegal 
taxes  against  a  railroad  company  may  work  an  irreparable  injury, 
an  injunction  against  the  collector  and  other  county  officials  will  be 
granted.  U.  P.  E.  R.  Co.  v.  Carr  et  al.,  96. 

INSTRUCTIONS  TO  JURY. 

INSTRUCTIONS  TO  JURY. — While  the  district  court  may  have  erred  in 
refusing  to  give  to  the  jury  a  certain  instruction  requested  by  de- 
fendant, as  to  the  form  of  their  verdict,  if  they  found  for  the  de- 
fendant in  an  action  for  replevin,  yet  if  the  jury  find  for  the  plain- 
tiff, the  defendant  cannot  be  injured  by  the  refusal  of  the  court  to 
give  such  instruction,  and  the  judgment  should  not  be  interfered 
with.  Alsop  v.  Hutton,  285. 

JURISDICTION. 

1.  JUBISDICTION  OF  THE  UNITED  STATES. — Under  the  provisions  of  the 

organic  act  of  the  territory  of  Wyoming,  the  United  States  has  ex- 
clusive jurisdiction  over  the  forts  and  military  reservations  thereof. 
The  federal  judges  of  the  territory,  sitting  with  the  powers  of  cir- 
cuit and  district  judges  of  the  United  States,  are  empowered  to  try 
all  offenses  committed  on  such  reservations,  against  the  laws  of  the 
United  States.  Scott  v.  United  States,  40. 

2.  UNITED  STATES  COURTS. — Military  reservations  within  the  territory 

of  Wyoming  are  solely  under  the  jurisdiction  of  the  United  States. 
Brown  v.  llges,  202. 

3.  IDEM. — Where  stock  was  roaming  over  a  reservation,  contrary  to  the 

provisions  of  the  general  orders  of  the  commanding  officer,  and 
such  stock  was  seized  by  a  subordinate  officer  of  the  United  States, 
in  accordance  with  such  general  orders:  Held,  1.  That  such  com- 
manding officer  had  the  authority  to  make  and  enforce  the  general 
orders;  2.  That  the  owner  of  such  stock  could  not  maintain  a  civil 
action  for  damages  against  the  subordinate  officer  who  executed 
the  general  orders.  Id. 

4.  IDEM.— A  party  will  not  be  heard  to  allege  error  which,  if  it  exists  at 

all,  is  in  his  own  favor.     Id. 

5.  JUSTICES  OF  THE  PEACE. — The  organic  act  of  Wyoming  territory  pro- 

vides that  justices  of  the  peace  may  have  jurisdiction  in  civil  and 


INDEX.  437 

criminal  cases  not  involving  titles  to  lands  or  cases  of  felony,  where 
the  amount  claimed  or  the  penalty  fixed  does  not  exceed  one  hun- 
dred dollars,  and  as  limited  by  law.  Wolcott  v.  Territory,  67. 

6.  IDEM. — There  is  no  limit  to  the  penalty  for  the  crime  of  assault  and 

battery.     Id. 

7.  IDEM. — Hence  justices  of  the  peace  have  no  jurisdiction  of  the  offense, 

nor  to  hear,  try  and  determine  the  same,  but  upon  the  charge  would 
sit  only,  and  have  authority  as  committing  magistrates.  Id. 

8.  APPELLATE  COURTS — WEIGHT  OF  EVIDENCE. — The  supreme  court 

should  not  reverse  a  judgment  of  a  lower  court  because  it  might 
or  would  have  arrived  at  a  different  conclusion  upon  the  evidence 
adduced.  The  appellate  court  should  only  reverse  where  there  is 
no  testimony  to  sustain  or  rebut  a  material  allegation,  or  where  it 
is  apparent  that  the  jury  have  been  controlled  by  improper  motives, 
or  have  misunderstood  the  evidence.  Ililliard  Flume  &  L.  Co.  v. 
Woods,  400. 

LEGISLATIVE  PROCEEDINGS. 

LEGISLATIVE  PROCEEDINGS— PASSAGE  OF  BILLS. — Each  house  keeps  a 
journal  of  its  proceedings,  which  is  a  public  record,  and  of  which 
the  courts  are  at  liberty  to  take  judicial  notice.  If  it  should  ap- 
pear from  these  journals  that  any  act  did  not  receive  the  requisite 
majority,  or  that  in  respect  to  it  the  legislature  did  not  follow  any 
requirement  of  the  constitution,  or  that  in  any  other  respect  the  act 
was  not  constitutionally  adopted,  the  courts  may  act  upon  the  evi- 
dence and  judge  the  statute  void.  Brown  v.  Nash,  85. 

LEGISLATIVE  POWERS. 

LEGISLATIVE  POWERS— MUNICIPAL  CORPORATIONS. — The  legislative 
assemblies  of  Wyoming  and  other  territories,  although  not  in  pos- 
session of  sovereign  powers,  have  authority  under  various  acts  of 
congress  to  create  municipal  corporations,  and  to  grant  charters  to 
the  same.  Wayner  v.  Harris,  194. 

MANDAMUS. 

1.  MANDAMUS — CONFLICT    OF    LAWS. — Where    statutes,  otherwise    of 

equal  validity,  conflict,  the  greater  force  should  be  given  to  the  one 
tending  to  the  best  interests  of  the  commonwealth,  and  to  the  en- 
forcement of  the  laws.  Thmnellan  v.  Nicholls,  61. 

2.  IDEM. — Where  one  law  provides  that  no  moneys  shall  be  paid  out  of 

the  territorial  treasury,  unless  especially  appropriated  by  the  legis- 
lature, and  another  law  provides  for  the  proper  custody  and  main- 
tenance of  convicted  criminals,  but  no  appropriation  having  been 
made  for  the  purpose,  a  writ  of  mandamus  will  issue  to  compel  the 
territorial  auditor  to  audit  the  proper  account  for  the  same,  and  to 
compel  the  treasurer  of  the  territory  either  to  pay  such  account 
when  audited,  or  to  certify  that,  there  are  no  funds  in  the  treasury 
wherewith  to  pay  the  same.  Id. 


438 

3.  IDEM. — Where  the  county  superintendent  of  public  schools  refuses 
to  pay  over  money  belonging  to  any  district,  or  to  make  the  proper 
order  for  the  application  of  such  money,  the  proper  proceeding  of 
the  party  aggrieved  is  by  writ  of  mandamus.  Brown  v.  Nash,  85. 

MEASURE  OP  DAMAGES. 

MEASURE  OF  DAMAGES. — Where  certain  railroad  ties  of  plaintiff  had 
been  wrongfully  converted  and  sold  by  defendant:  Held,  that  plain- 
tiff was  entitled  to  recover  the  highest  market  price  for  the  same 
that  was  paid  at  any  time  between  conversion  and  judgment.  Hil- 
liard  F.  &  L.  Co.  v.  Woods,  400. 

MOTION  FOR  NEW  TRIAL. 

1.  MOTION  FOR  NEW  TRIAL. — It  is  now  a  well-settled  doctrine  on  that 

subject  that  before  a  party  can  bring  a  case  into  the  supreme  court 
from  a  district  court,  lie  must  first  have  made  his  motion  for  a  new 
trial  in  that  court  in  writing  and  assigned  his  reason  therefor. 
Wilson  v.  O'Brien,  42. 

2.  IDEM. — A  motion  for  a  new  trial  must  be  interposed  within  three  days 

after  the  verdict  is  rendered.     Id. 

3.  IDEM. — The  district  court  must  first  have  the  opportunity  to  review 

the  errors  complained  of,  which  must  be  assigned  in  such  motion 
before  the  party  complaining  can  bring  the  case  to  the  supreme 
court  for  review.  Id. 

9 

MUNICIPAL  CORPORATIONS. 

MUNICIPAL  CORPORATIONS— PERSONAL  PROPERTY.— Village  lots  to 
which  no  title  has  been  derived  from  the  United  States  are  not  prop- 
erty that  should  be  assessed,  but  improvements  thereon  may  be  as- 
sessed as  personal  property.  Ivinson  v.  Hance,  270. 

NATIONAL  BANKS. 

1.  NATIONAL  BANKS — POWERS  OF  AGENTS. — Money  paid  to  the  cashier 

of  a  bank  for  the  use  of  and  benefit  of  the  bank,  is  payment  to  the 
bank  itself.  If  such  cashier  misapply  the  funds  so  received,  the 
bank,  as  his  principal,  can  maintain  an  action  against  him,  but  not 
the  person  paying  the  money.  Wilson  v.  Rogers,  51. 

2.  IDEM. — If  the  latter  suffer  injury  by  reason  of  such  misapplication, 

his  remedy  lies  against  the  bank  and  not  against  its  officer  or  ser- 
vant. Id. 

3.  IDKM. — An  agent  receiving  money  from  a  third  person  for  his  prin- 

cipal, if  he  acted  within  the  scope  of  his  authority,  and  has  the 
right  to  receive  such  payment,  is  not  responsible  to  the  third  per- 
son; payment  to  the  agent  is  payment  to  the  principal,  who  is  re- 
sponsible for  the  default  of  the  agent.  Id. 

4.  NATIONAL   BANK    STOCKHOLDER. — The  stockholder  of   a  national 

bank  has  leg;il  capacity  to  sue  such  corporation  for  misappropria- 


INDEX.  439 

tioo  of  the  stockholder's  funds,  and  for  other  causes.     Wilson  v. 
First  National  Bank,  108. 

5.  IDEM. — A  corporation  being  a  legal  entity,  as  such,  distinct  from  its 
members,  incorporators,  or  stockholders,  it  follows  that  each  or  all 
of  them  may  have  grievances  redressed  by  actions  at  law  or  pro- 
ceedings in  chaucery,  as  any  creditor  uot  occupying  that  relation.  Id. 

NEW  TRIAL. 

NEW  TRIAL. — A  motion  for  a  new  trial  will  not  be  granted  where  two 
verdicts  for  the  same  party  have  already  been  rendered,  the  second 
for  a  larger  amount  than  the  first,  where  the  amount  involved  is 
small,  and  where  there  is  no  probability  that  a  verdict  materially 
different  would  be  arrived  at  by  a  jury,  unless  very  great  and,  man- 
ifest injustice  has  been  done.  Emery  v.  Hawley,  305. 

NONSUIT. 

NONSUIT. — Where  assignees  of  a  bankrupt  brought  suit  to  recover  the 
value  of  certain  property  purchased  of  him  on  an  alleged  fraudu- 
lent sale,  and  on  the  trial  failed  to  prove  that  such  sale  and  the 
filing  of  the  petition  in  bankruptcy  occurred  within  two  months' 
time  of  each  other,  according  to  the  provisions  of  section  5128  of 
the  bankrupt  act,  but  on  the  contrary  did  prove  that  two  months 
and  twenty-three  days  had  elapsed  between  the  occurrence  of  the 
alleged  fraudulent  purchase  and  the  filing  of  the  petition  in  bank- 
ruptcy: Held,  that  it  was  not  only  right  for,  but  th«  duty  of,  the 
district  court,  on  motion  of  defendants,  to  grant  a  nonsuit.  North 
v.  McDonald,  351. 

OFFICIAL  BONDS. 

OFFICIAL  BONDS — LIABILITY  OF  SURETIES. — Under  the  statutes  of  the 
territory  of  Wyoming,  which  provide  that  the  judges  of  probate  of 
the  respective  counties  shall  be  ex  officio  county  treasurers  of  the 
same,  an  undertaking  given  for  the  faithful  performance,  etc.,  of 
the  duties  of  probate  judge  is  not  an  undertaking  for  such  peiform- 
ance  of  duties  of  county  treasurer  by  the  same  person,  and  the  sure- 
ties on  the  bond  for  the  former  are  not  liable  for  the  defaults  and 
malfeasance  of  such  probate  judge  while  acting  as  county  treasurer. 
To  make  a  person  an  ex  officio  officer,  by  virtue  of  his  holding  an- 
other office,  does  not  merge  the  two  into  one.  Territory  v.  Pitter, 
321. 

TOWER  OF  COUNTY  OFFICERS. 

1.  POWER  OF  COUNTY  OFFICERS. — In  the  Territory  of  Wyoming,  where 
a  question  arises  as  to  the  line  between  different  counties  and  the 
assessment,  of  property  upon  the  territory  in  dispute,  the  board  of 
county  commissioners  or  the  board  of  equalization  of  either  of  the 
counties  interested,  is  not  a  proper  or  competent  tribunal  to  decide 


440  INDEX. 

•» 

in  which  county  a  person  or  corporation  shall  pay  taxes.  U.  P.  It. 
E.  Co.  v.  Carr,  96. 

2.  IDEM. — Under  such  circumstances  an  application  by  bill  of  complaint 

by  the  taxpayer  to  a  court  of  chancery,  for  an  order  that  the  parties 
in  interest  interplead,  and  for  a  perpetual  injunction  against  those 
in  error,  is  a  proper  course.  Id. 

3.  VETO. — In  order  to  pass  a  bill  in  the  legislature  over  the  governor's 

veto,  the  bill  must  receive  two  thirds  of  the  votes  of  the  members 
actually  present;  two  thirds  of  those  voting  is  not  sufficient  if  other 
members  are  present.  Id. 

PRACTICE. 

1.  PRACTICE — APPEAL. — An  appeal  must  be  perfected  to  entitle  the 

appellant  either  to  a  stay  of  proceedings,  or  to  a  hearing  on  the 
appeal.  Serving  notice  of  appeal,  and  also  filing  in  addition  thereto 
a  bond  on  appeal  is  insufficient  unless  the  record  has  been  properly 
taken  to  the  appellate  court.  If  the  appeal  has  not  been  perfected 
the  course  for  the  appellee  to  pursue  is  by  motion  to  dismiss  the 
appeal.  Launier  v.  Haase,  25. 

2.  APPP:AL — WRIT  OF  ERROK. — Where  a  code  of  civil  procedure  allows 

a  party  to  carry  proceedings  for  review  to  the  supreme  court,  either 
by  appeal  or  writ  of  error,  he  must  decide  upon  which  course  he 
will  rely.  After  having  attempted  to  reach  the  supreme  court  by 
appeal,  and  having  failed  therein  by  reason  of  not  perfecting  the 
same  in  filing  the  undertaking  required  by  statute,  it  is  then  too 
late  for  him  to  resort  to  another  remedy,  and  to  attempt  to  have 
the  proceedings  of  the  district  court  reviewed  by  means  of  a  writ 
of  error  or  petition  in  error.  Ilorton  v.  Peacock,  57. 

3.  CRIMINAL  CASES. — The  provisions  of  the  statutes,  that  in  criminal 

cases  the  plea  of  the  defendant  shall  be  entered  by  the  clerk  of  the 
court  upon  the  indictment,  is  simply  directory,  not  mandatory. 
Territory  v.  Anderson,  20. 

4.  IDEM. — A  failure  so  to  do,  unless  the  defendant  is  by  some  means 

misled  thereby,  is  not  a  fatal  error,  or  one  to  justify  a  reversal.    Id. 

5.  IDEM. — A  statute  requiring  that  in  cases  of  misdemeanor  the  name 

of  the  prosecuting,  or  other  witness,  shall  be  indorsed  on  the  indict- 
ment, is  merely  directory,  and  not  mandatory.  Id. 

6.  IDEM — ARREST  OF  JUDGMENT. — A  motion  in  arrest  of  judgment  can 

only  reach  defects  apparent  in  the  record.     Territory  v.  Pierce,  168. 

7.  IDEM. — Where  the  question  raised  as  to  a  defect  in  the  jurisdiction 

of  the  court  did  not  appear  in  the  record:  Held,  that  a  motion  in 
arrest  of  judgment  was  improperly  sustained.  Id. 

8.  IDEM — No  defect  in  evidence   can   be  urged   for   an   arrest  of  judg- 

ment.    I<1. 
0.  DISPOSITIONS. — A  motion    to  suppress  depositions  should  embrace 

and  set  forth  all  the  objections  thereto.     Carr  v.  Wright,  157. 
10.    IDEM. — Part  of  the  exceptions  cannot  be  raised  and  argued  at  one 

time  and  part  at  another.     Id. 


INDKK.  441 

11.  IDEM. — The  argument  of  a  motion  to  suppress  depositions  must  be 
made  before  the  trial  commences.     Id. 

12.  APPEAL. — It'  un  error  is  committed  by  the   supreme   court  of  the 
territory,  the  party  believing  he  has  sustained  injury  thereby  has, 
of  course,  his  right  to  appeal   to  the  supreme  court  of  the  United 
States;  but  for  an  alleged  error  in  judgment  of  the  court  a  party 
cannot  have  a  former  decision  of  the  court  reversed  on  a  mere  mo- 
tion.    Bonnifield  v.  Price,  245. 

13.  IDEM. — A  motion  to  vacate  a  former  decision  will  not  be  granted  if 
it  is  founded  upon  some  question  which  was  raised  or  could  have 
been  raised  on  the  argument  of  the  case.     Id. 

14.  FKACTICE. — Au  application  for  change  of  judge,  under  the  provi- 
sions of  the  statutes  of  the  territory  of  Wyoming,  must  be  made  in 
the  cause  before  it  is  definitely  set  for  trial.     Dolan  v.  Church,  187. 

15.  IDEM. — Where  the  application  was  made  after  both  parties  had  con- 
sented in  open  court  that  the  trial  of  the  cause  should  be  set  down 
for  a  day  certain:  Held,  that  it  was  too  late  to  make  such  applica- 
tion, and  that  the  moving  party  had  waived  his  rights  therein.    Id. 

16.  IDEM-. — In  order  to  have  an  error  considered  by  the  supreme  court 
it  must  be  properly  assigned  as  an  error,  and  presented  on  a  motion 
for  a  new  trial  in  the  court  below.     Id. 

17.  IDEM. — Under  the  provisions  of  the  code  of  procedure  in  the  terri- 
tory of  AVyoming,  all  objections,  except  those  for  incompetency 
and  irrelevancy,  must  be  raised  by  motion  before  the  commence- 
ment of  the  trial.     Jlellinanv.   Wright,  190. 

18.  IDEM. — Objections,  however,  for  the  two  reasons  mentioned,  should 
be  made  on  the  trial,  and  the  fact  that  the  court  has  previously  re- 
fused   to   suppress   such   depositions   on   motion   is   no  bar  to  the 
question  being  again  raised   as  to  their  incompetency  and   irrele- 
vancy.    Id. 

19.  IDEM. — Where   the  plaintiff  had  introduced  his  evidence  and  had 
rested,  but  subsequently  offered  the  statutes  of  Xebraska  in  evi- 
dence: Held,  that  the  admission  of  the  same,  or  of  other  testimony, 
was  entirely  at  the  discretion  of  the  court,  and  that  the  refusal  to 
admit  further  evidence  at  that  time  was  no  error.     Id. 

20.  IDEM. — Under  the  code  of  procedure  of  Wyoming  territory,  an  ac- 
tion in  which  the  city  of  Cheyenne,  a  municipal  corporation,  prose- 
cutes as  plaintiff  to  recover  a  fine  or  penalty,  under  the  ordinances 
of  the  city,  is  a  "  civil  action.11     Jenkins  v.  City  of  Cheyenne,  289. 

21.  APPEAL  FIJOM  JUSTICES'  COUUTS. — In  taking   an   appeal    from  the 
judgment  of  a  court  of  a  justice  of  the  peace,  the  requirements  of  the 
statute  must  be  strictly  and  literally  complied  with  as  to  the  affida- 
vit and  undertaking  by  the  appellant,  or  his  appeal  will  on  motion 
be  stricken  from  the  docket  of  the  appellate  court.     Id. 

22.  IDEM. — The  statutes  of  Wyoming  prescribe  how  a  judgment  of  the 
court  of  a  justice  of  the  peace  may  be  reversed.     The  law  must  be 
strictly  followed,  or  the  appellate  court  will  not  obtain  jurisdiction. 
No  other  proceedings  can  give  jurisdiction.     IcinS'in  v.  I'easc,  277. 


442  INDEX. 

23.  PBOCEEDINGS  IN  ERROR. — The  mere  filing  of  the  statutory  under- 
taking in  the  district  court  by  the  plaintiff  in  error,  will  not  stay 
proceedings  in  that  court.     All  the  proceedings  necessary  to  take 
the  case  to  the  supreme*  court  must  be  perfected,  and  it  is  only 
when  that  is  done  that  the  undertaking  will  act  as  a  supersedeas. 
Giafcke  v.  O'Brien,  317. 

24.  IDEM. — It  is  the  well  established  and  invariable  rule  of  the  supreme 
court,  that  in  proceedings  before  it  in  error,  the  record  or  transcript 
must  contain  all  the  material  evidence  given  in  the  court  below, 
and  bearing  upon  any  question  relied  upon  by  the  plaintiff  in  error. 
Ivinson  v.  Alsop,  251. 

25.  MOTION  FOR  NEW  TRIAL. — The  record  must  also  show  that  a  motion 
for  a  new  trial  was  made  in  the  court  below,  raising  all  matters  of 
errors  and  exceptions  (upon  which  the  plaintiffs  in  error  relied), 
and  the  motion  overruled.     Id. 

26.  IDEM. — The  evidence  and  motion  for  a  new  trial  must  be  contained 
in  the  bill  of  exceptions.     The  bill  must  be  signed  within  the  time 
limited  by  law.     The  defect  cannot  be  remedied  and  a  motion  to 
strike  the  petition  in  error  from  the  files  and  to  affirm  the  judgment 
of  the  district  court  will  be  sustained.     Id. 

27.  WRITS  OF  EKROR. — Under  the  provisions  of  the  Wyoming  code  of 
procedure  and  the  rules  of  practice  established  by    the  supreme 
court,  parties  intending  to  have  the  case  reviewed  in  the  supreme 
court,  either  by  writ  of  error  or  petition  in   error,  must,  upon  the 
trial,  make  his  objections  clearly  and  distinctly,  briefly  stating  the 
grounds  thereof.     If  overruled,  an  exception  must  be  noted  then 
and  there.     Murrin  v.  Ullman,  36. 

28.  PRACTICE — PROCEEDINGS  IN  ERROR.— If  the  plaintiff  in  errror  fail 
to  comply  with  the  rules  of  the  supreme  court  in  having  the  record 
prepared  as  prescribed  by  such  rules,  the  proceedings  in  error  will 
be  dismissed  and  a  writ  of  procedendo  awarded.     Jenkins  v.  Terri- 
tory, 318. 

29.  REVIVOR. — The  statutes  of  Wyoming  provide  that  the  order  of  re- 
vivor  in  case  of  the  death  of  a  party  shall  be  served  and  returned 
the  same  as  a  summons.     A  different  method  having  been  followed: 
Held,  that  the  statutes  must  be  strictly  and  literally  complied  with. 
Wolcott  v.  Fee,  255. 

30.  PROCEEDINGS  IN  ERROR.— In  commencing  proceedings  in  error  the 
provisions  of  the  statute  mast  be  strictly   complied  with.     Thus, 
where  the  statutes  require  absolutely  that  a  bond  or  undertaking 
for  suits,  etc.,  be  given  by  plaintiff  in  error,  and  he  fails  so  to  do, 
his  proceedings  will,  on  motion,  be  dismissed.     Norton  v.  Peacock, 
39. 

31.  PROCEEDINGS  IN  ERROR — BILL,  OF  EXCEPTIONS — MOTION  FOR  NEW 
TRIAL. — The  plaintiff  in  error  must  incorporate  his  motion  for  a 
new  trial  in  the  bill  of  exceptions,  and  thus  have  it  made  part  of  the 
record,  otherwise  the  proceedings  in  error,  on  motion,  will  be  dis- 


INDEX.  443 

missed,  and  the  judgment  of  the  lower  court  affirmed.  Co.  Commrs. 
v.  Ilinton,  358. 

32.  PBOCKEDINOS  IN  ERROR. — A  party  to  have  errors  complained  of, 
reviewed  by  the  supreme  court,  must  have  his  bill,  containing  all 
exceptions  upon  which  he  relies,  together  with  the  motion  for  a 
new  trial,  sigued  or  allowed  by  the  presiding  judge  of  the  court 
below.  White  v.  Sisson  et  al.,  399, 

REFEREE. 

1.  REFEREE. — Under  the  provisions  of  the  statutes  of  Wyoming,  the 

court  may  order  a  reference  in  a  case  the  trial  of  which  involves  the 
examination  of  a  long  account.  U.  P.  B.  R.  Co.  v.  Wilson,  309. 

2.  IDEM. — But  where  the  report  of  a  referee  is  not  responsive  to  the  is- 

sues, the  case  should  be  sent  back  for  trial  to  a  new  referee,  or  to 
a  jury,  and  not  to  the  first  referee.  Id. 

REPLEVIN. 

1.  REPLEVIN. — Where,  in  an  action  of  replevin,  the  court  refused  un- 

der the  pleadings  to  permit  the  defendant  to  prove  title  to  the  prop- 
erty, but  permitted  the  defendant  to  so  amend  his  answer  that  the 
court  might  admit  such  evidence:  Held,  that  the  court  did  not  err 
in  so  doing.  Gregory  v.  Morris,  213. 

2.  IDEM. — The  right  of  possession  merely  is  sufficient  to  enable  a  party 

to  maintain  an  action  of  replevin.     Id. 

3.  IDEM. — In  a  contract  between  vendor  and   vendee,  which  contained 

a  clause  to  the  effect  that  the  right  of  property  should  remain  in 
the  vendor,  with  the  right  to  seize  the  same  at  any  time  until  the 
vendee  should  have  complied  with  the  terms  of  the  contract:  Held 
that  such  clause  was  valid  as  between  parties,  and  that  an  action 
in  replevin  could  be  maintained  by  the  vendor,  although  posses- 
sion had  been  given  to  the  vendee.  Id. 

4.  IDEM. — Although  a  general  verdict  in  an  action  of  replevin  is  not 

strictly  in  accordance  with  the  provisions  of  the  code  of  procedure, 
yet  it  is  not  such  an  error  as  to  justify  the  interference  of  an  appel- 
late court,  unless  it  is  shown  that  the  plaintiff  in  error  sustained 
injury  thereby.  Id. 

5.  IDEM. — Where  the  plaintiff  in  a  suit  in  replevin  failed  to  prove  on 

trial  the  material  allegations  of  his  petition,  and  the  court,  on  mo- 
tion of  defendant,  ordered  a  non-suit:  Held,  that  the  granting  of 
such  order  was  not  erroneous.  Bath  v.  Inr/crsoll,  281. 

6.  IDKM. — The  defendant  in  an  action  of   replevin,  having  obtained 

against  the  plaintiff  an  order  of  nonsuit,  may  proceed  to  impanel  a 
new  jury  in  the  same  cause,  and  to  assess  the  defendant's  damages. 
Id. 

SENTENCE. 

1.  SEXTENCE. — Where  a  defendant  under  an  indictment  for  felony  has 
been  irregularly  sentenced,  the  proper  course  is  to  again  pass  sen- 
tence upon  him  in  due  form.  Kinsler  v.  Territory,  112. 


444  INDEX. 

2.  IDEM. — If  the  court  fails  to  interrogate  the  prisoner,  before  passing 
sentence,  as  to  whether  he  has  any  thing  to  say  why  sentence  should 
not  be  passed  upon  him,  such  failure  furnishes  no  ground  for  a  re- 
versal of  judgment,  especially  as  the  supreme  court  must  impose 
the  sentence  de  novo.  Id. 

SHERIFFS'  FEES. 

SHERIFFS'  FEES.— Under  the  laws  of  Wyoming  for  1869  the  allowance 
to  the  sheriffs  of  the  respective  counties,  of  one  dollar  per  day  for 
the  custody  and  subsistence  of  prisoners,  is  one  of  the  perquisites 
of  the  office,  as  well  as  a  remuneration  for  services  rendered  and 
articles  furnished,  and  county  commissioners  have  no  power  to 
deprive  a  sheriff  of  the  same.  Co.  Comrs.  v.  Boswell  294, 

STATUTE  OF  LIMITATIONS. 

STATUTE  OF  LIMITATIONS. — While  the  statute  of  limitations  of  Wyo- 
ming territory  provides  that  a  cause  of  action,  barred  by  the  statute 
of  the  state  or  territory  in  which  it  arose,  is  also  barred  in  Wyo- 
ming, yet  if  it  conclusively  appears  to  the  court  that  the  defendant 
has  been  for  such  a  length  of  time  absent  from  such  state,  where 
the  cause  of  action  originated,  as  to  prevent  the  statute  of  limita- 
tions running  there,  such  absence  will  also  prevent  the  statute  run- 
ning here,  and  the  court  should  so  hold.  Bonnifield  v.  Price,  223. 

STRANGER  TO  CONTRACT. 

STRANGER  TO  CONTRACT. — It  is  well  settled  that  in  no  case  can  a 
stranger  to  a  contract  maintain  an  action  upon  it  or  for  the  breach 
of  it,  save  in  the  exceptional  cases  where  a  promisee  was  consid- 
ered merely  the  agent  of  the  stranger,  and  where  the  stranger  was 
regarded  as  the  trustee  of  the  party  to  whom  the  promise  is  made. 
McCarteney  v.  Bank,  386. 

SURETIES. 

SURETIES. — Though  at  common  law  the  discharge  of  one  surety  to  a 
bond  or  undertaking  may  discharge  all,  a  court  of  chancery  may 
interfere,  and  see  that  material  justice  is  meted  out  to  all  parties. 
Trabing  v.  County  Comrs.,  302. 

VERDICT. 

1.  VERDICT — FORM  OF. — Where  a  verdict  is   returned  in  writing  by  a 

jury,  it  should  at  least  show  clearly  upon  its  face  precisely  whatthe 
jury  intended  to  find.  It  should  state  for  which  of  the  parties  to 
the  action  the  jury  finds,  and  also  against  which  one,  where  there 
are  more  than  one  of  either  plaintiffs  or  defendants.  Great  West- 
ern Inn.  Co.  v.  Pierce.  45. 

2.  IDEM. — A  verdict  in  the  following  form  held  to  be  sufficient :  "  We, 

the  jury,  find  a  verdict  for  H.  A.  Pierce  for  the  sum  of  one  thousand 
one  hundred  and  fifty-eight  dollars  and  live  cents.  A.  P.  Post, 
Foreman."  Id, 


INDEX.  445 

3.  IDEM. — Under  the  statutes  of  Wyoming  territory,  for  the  year  1869, 

and  in  force  in  1872  and  1873,  it  was  the  duty  of  the  jury  in  crim- 
inal cases  where  a  verdict  of  guilty  was  found,  and  not  of  the  court, 
to  fix  the  term  of  imprisonment  or  to  assess  the  amount  of  tine. 
Hamilton  v.  Territory,  131. 

4.  IDEM. — This  rule  applied  to  misdemeanors  as  well  as  to  felonies.    Id. 

5.  NEW  TRIAL. — A   verdict  will  not  be  set  aside,  nor  a  new  trial  or- 

dered, if  it  is  apparent  that  substantial  justice  has  been  rendered, 
especially  if  it  is  also  evident  that  another  jury  would  not  mate- 
rially vary  the  findings  of  the  first.  Nayle  v.  liutledge,  301. 

VESTED  RIGHTS. 

VESTED  RIGHTS. — Even  where  the  legislature  so  changed  the  boundaries 
of  counties  that  a  school  district  formerly  belonging  to  one  is  sub- 
sequently embraced  in  tlie  other  county,  if  school  moneys  have, 
prior  to  the  passage  of  such  act,  become  due  from  the  former  county 
to  such  district,  said  district  has  a  vested  right  therein,  and  a  writ 
of  mandamus  will  lie  to  compel  the  payment  thereof.  Brown  v. 
Nash,  85. 

VETO. 

VETO. — In  order  to  pass  a  bill  in  the  legislature  over  the  governor's 
veto,  the  bill  must  receive  two  thirds  of  the  votes  of  the  members 
actually  present.  Two  thirds  of  those  voting  are  not  sufficient,  if 
other  members  are  present.  Brown  v.  Nash,  85. 

WORK,  LABOR  AND  SERVICES. 

WORK,  LABOR  AND  SERVICES. — The  court  below  having  charged  the 
jury  that  if  defendant  hired  plaintiff  for  one  month  at  a  stipulated 
sum,  and  discharged  him  before  the  expiration  of  the  month  with- 
out sufficient  cause,  defendant  was  bound  to  pay  plaintiff  for  the 
full  month,  or  that  if  defendant  discharged  plaintiff  before  the 
time  agreed  upon  had  expired,  at  a  great  distance  from  home  and 
in  an  uninhabited  country,  that  defendant  was  bound  to  settle  with 
plaintiff  and  pay  him  the  amount  found  to  be  due:  Held,  that  such 
charge  was  not  erroneous.  Dunn  v.  Hereford,  206. 


KULES 


SUPREME  COURT  OF  WYOMING  TERRITORY. 


OF  ATTORNEYS  AND  COUNSELORS. 
RULE  1. — Xo  person  shall  be  admitted  to  practice  as  an 
attorney  or  counselor  at  law  in  this  court  unless  he  has 
served  a  regular  clerkship  within  this  territory  with  some 
practicing  attorney  of  known  abilities,  and  been  admitted 
to  practice  in  the  district  court  for  one  of  the  judicial  dis- 
tricts for  at  least  one  year.  Or  unless  he  has  been  admitted 
to  practice  in  some  one  of  the  states  or  territories  of  the 
United  States,  or  district,  circuit,  or  supreme  court  of  the 
same,  and  produces  a  certificate  under  the  seal  of  such 
court,  and  is  a  citizen  of  the  United  States,  or  has  declared 
his  intention  to  become  a  citizen  of  the  United  States,  of 
good  moral  character,  and  shall  take  and  subscribe  such  oath 
as  is.  or  may  be,  provided  by  statute. 

OF  MOTIONS. 

RULE  2. — Motions  shall  be  made  by  counsel  in  the  order 
in  which  their  names  stand  on  the  record ;  but  no  one  is  to 
make  more  than  one  motion  until  all  others  have  had  an  op- 
portunity. 

KrLE  -\. — When  a  motion  is  founded  on  a  matter  of  fact, 
which  is  not  admitted  or  apparent  on  the  record,  it  must  be 
in  writing,  and  supported  by  affidavit. 

OF  CALLING  THE  DOCKET. 

RULE  4. — On  the  first  day  of  the  term  the  docket  shall  be 

447 


448  RULES. 

called  and  cases  arranged  for  argument,  or  otherwise  dis- 
posed of.  In  all  cases  of  appeals,  where  there  is  no  appear- 
ance on  the  part  of  the  appellant,  or  where  there  is  an 
appearance,  but  the  case  not  ready  for  argument  by  the 
counsel  for  the  appellant,  the  counsel  for  the  appellee  may 
submit  the  cause  or  have  it  dismissed. 

OF  MOTIONS  FOR  NEW  TRIAL  IN  THE  DISTRICT  COURTS. 
RULE  5. — No  case  will  be  heard  in  court  unless  a  motion 
for  a  new  trial  shall  have  been  made  in  the  court  below  in 
which  all  matters  of  error  and  exceptions  have  been  pre- 
sented, argued,  and  the  motion  overruled,  and  exceptions 
taken  to  the  overruling  of  said  motion,  all  to  be  embraced 
in  the  bill  of  exceptions.  Provided,  that  where  actions  are 
dismissed  by  reason  of  a  demurrer  to  plaintiff's  petition  be- 
ing sustained,  that  it  shall  be  sufficient  to  carry  the  case 
up  by  filing  a  certified  copy  of  the  record  with  the  briefs  of 
counsel. 

OF  ATTORNEY'S  BRIEFS. 

RULE  6. — No  case  will  be  considered  by  this  court  until 
copies  of  the  briefs,  either  printed  or  plainly  written,  of 
attorneys  on  both  sides,  shall  be  presented  to  the  court:  or 
if  either  side  neglects  or  refuses  to  furnish  a  copy  of  his 
brief,  the  case  will  be  heard  and  determined  upon  the  one 
presented.  Attorneys  upon  opposite  sides  will  be  required, 
upon  notice  or  request,  to  interchange  briefs,  at  least  five 
days  before  the  first  day  of  the  term. 

OF  TRANSCRIPTS. 

RULE  7= — The  appellant  shall,  in  all  cases,  cause  the 
transcript  to  be  paged,  and  the  lines  of  each  page  to  be 
numbered.  He  shall  also  cause  marginal  notes  to  be 
placed  on  the  transcript  in  their  appropriate  places,  indi- 
cating the  several  parts  of  the  pleadings  in  the  cause,  the 
exhibits,  if  any,  orders  of  the  court,  and  the  bills  of  excep- 
tions ;  also,  where  the  evidence  is  set  out  by  depositions  or 
otherwise,  the  names  of  the  witnesses.  The  appellant,  as 
also  the  appellee,  where  he  shall  assign  cross-errors,  shall,  in 


&ULES.  449 

his  brief,  refer  specifically  to  the  record  by  page  and  line  for 
any  and  every  matter  relied  upon  as  error. 

OF  THE  DUTIES  OF  THE  CLERKS. 

RULE  8. — The  clerks  shall  enter  upon  the  court  docket,  in 
a  proper  column,  the  fact,  where  such  is  the  case,  that  the 
appeal  was  taken  in  term,  and  duly  perfected  by  filing  the 
record  within  the  time  limited. 

When  the  appeal  is  not  taken  as  above,  the  clerk  shall 
note  the  date  at  which  it  was  taken,  and  also  note  the  fact 
whether  or  not  the  proper  notice  was  given  to  the  appellee. 

The  clerk  shall,  on  opening  of  court  each  day,  read  the 
journal  entries  of  the  preceding  day,  that  any  errors  occur- 
ring therein  may  be  corrected.  The  chief  justice  shall  at 
the  end  of  each  term  of  court,  or  as  soon  thereafter  as  may 
be,  sign  the  journal  for  such  term. 

OF  ARGUMENTS. 

RULE  9. — The  counsel  having  the  affirmative,  or  the  one 
who  takes  the  appeal  or  writ  of  error,  shall  be  entitled  to  the 
opening  and  closing.  In  his  opening  he  shall  present  all  the 
authorities  and  points  on  which  he  relies ;  the  counsel  op- 
posed shall  then  be  heard  and  shall  present  all  his  authori- 
ties and  his  defense  generally,  and  the  counsel  for  the  ap- 
peal, writ  of  error,  or  affirmative  as  the  case  may  be,  shall 
conclude.  The  counsel  on  either  side  of  a  case  shall  not  oc- 
cupy in  argument  exceeding  ninety  minutes,  except  by  spe- 
cial leave  of  the  court,  obtained  before  arguments  are  com- 
menced. 

OF  DISTRIBUTION  AND  DECISION  OF  CAUSES. 
RULE  10. — After  causes  have  been  argued  and  are  ready 
for  examination  by  the  court,  they  shall  be  distributed  to  the 
several  judges,  and  a  record  will  be  kept  of  such  distribution. 
But  no  cause  shall  be  decided  by  less  than  a  quorum  of  the 
court,  nor  shall  an  opinion  be  filed  speaking  for  all,  or  for  a 
majority  of  the  court,  until  it  shall  have  been  read  in  the 
hearing  of  all,  or  a  majority  thereof. 
^ 


450  Ruidss. 

OF  THE  ORDER  or  ENTERING  CASES  ON  THE  DOCKET. 

RULE  11. — Cases  shall  be  entered  on  the  -court's  docket  ac- 
cording to  seniority  ;  and  when  a  case  is  called  in  its  regular 
order  and  the  parties  are  ready  to  proceed,  it  may  be  passed 
once  by  consent;  but  on  or  after  the  third  day  of  the  term, 
when  a  case  is  called  a  second  time  and  both  parties  are 'not 
ready  it  shall  be  placed  at  the  foot  of  the  list  and  not  heard 
until  all  other  cases  are  disposed  of;  but  on  the  second  call, 
if  either  one  of  the  parties  insist  on  proceeding  with  the  ar- 
gument, the  case  shall  "be  taken  up  and  disposed  of  unless 
sufficient  cause  shall  be  shown  to  justify  the  court  in  passing 
the  case  for  the  time. 

OF  UNPERFECTED  APPEALS,  ETC. 

RULE  12. — When  notices  of  appeals  or  writs  of  error  have 
been  filed  and  undertakings  entered  into  in  the  district 
courts — but  where  the  appellants  or  parties  applying  by  writs 
or  petitions  in  error  fail  to  enter  their  appeals  or  to  properly 
enter  their  errors  in  this  court,  the  appellee  or  defendant  in 
error  by  himself  or  counsel  may  apply  to  the  court  on  or  after 
the  first  day  of  the  term  for  a  rule  on  the  appellant  or  plain- 
tiff in  error  to  be  served  on  him  or  his  counsel  on  the  record 
in  the  court  below,  to  show  cause  why  the  appeal  or  writ  or 
petition  in  error  ^should  not  be  stricken  off  and  the  judgment 
affirmed.  Also,  on  a  rule  on  the  sureties  in  the  undertaking 
to  show  cause  why  the  judgment  should  not  be  entered 
against  them  for  the  amount  of  the  judgment  below,  together 
with  costs  and  damages. 

Upon  the  taking  of  such  rule,  the  court  shall  fix  a  day 
(during  the  term)  for  the  return  and  hearing  on 'the  rule  ; 
and  if  no  sufficient  cause  be  shown  to  the  contrary,  the  rule 
shall  be  made  absolute,  and  the  clerk  shall  certify  the  pro- 
ceedings to  the  district  court,  from  whence  the  record  should 
have  come,  and  said  certificate  shall  (showing  the  amount 
of  the  judgment,  including  interest,  cost  and  damages  al- 
lowed) be  a  sufficient  procedendo  for  the  issuance  of  execu- 
tion. 


RULES.  451 

OF  RETURN  OF  WRITS  OF  ERROR. 

RULE  13. — Upon  the  return  of  a  writ  of  error  to  the  clerk 
of  this  court,  said  clerk  shall  notify  the  attorney  of  record  of 
the  plaintiff  in  error  in  writing  by  mail  (keeping  a  record  of 
the  date  of  such  notice)  that  twenty  days  are  allowed  in 
which  he  is  required  to  file  his  list  of  errors  relied  upon  on 
the  argument  of  the  case  in  this  court.  And  in  the  event  of 
tli ere  being  no  attorney  of  record  in  this  territory,  then  such 
notice  may  be  made  in  the  same  manner  upon  the  plaintiff 
in  error.  And  in  the  event  of  the  non-residence  of  both  plain- 
tiff in  error  and  attorney,  then  the  notice  shall  be  by  publica- 
tion in  a  daily  newspaper,  published  at  the  capital  of  this  ter- 
ritory, by  three  insertions  in  said  paper ;  and  the  twenty  days 
to  begin  to  run  from  the  date  of  said  notice  and  date  of  last 
publication. 

OF  FILING  BRIEFS. 

RULE  14. — That,  with  the  opinion  of  the  court  in  each 
case  decided,  there  shall  be  filed  the  briefs  handed  to  the 
court  in  the  case,  the  same  to  remain  on  file  like  other  files, 
and  not  to  be  withdrawn  without  special  order. 

OF  PRINTING  BRIEFS. 

RULE  15. — The  briefs  prescribed  by  Rule  6  shall  hereafter 
be  printed,  and  according  to  the  rule  existing  in  the  United 
States  supreme  court  respecting  briefs  used  before  it ;  the 
reasonable  expense  of  the  printing  to  be  taxed  to  the  prevail- 
ing party. 

OF  ERROR  AND  APPEAL  BOOKS. 
RULE  16. — The  error  book  and  appeal  book  may  hereafter 

be  printed  by  the  plaintiff  in  error  or  appellant  in  his  elec- 
tion. The  printing  shall  be  according  to  the  rule  existing  in 
the  United  States  supreme  court,  in  cases  pending  before  it 
on  error  or  appeal.  The  reasonable  cost  of  the  printing  shall 
be  taxed  to  that  party,  if  he  prevails. 

OF  AMENDMENTS. 

RULE  17.— These  rules  may  be  altered  or  amended  at  any 
regular  term  of  the  supreme  court. 


•  EULES 


OF  THE 


DISTRICT  COURTS  OF  WYOMING  TERRITORY. 


OF  THE  ADMISSION  OF  ATTORNEYS. 

•  RULE  1. — When  any  person  shall  make  application  for 
admission  to  practice  in  this  court  (except  practicing  attor- 
neys from  other  states  and  territories  who  shall  be  permitted 
by  rules  of  courtesy  to  practice  in  certain  cases)  as  an 
attorney-at-law,  the  court  shall  appoint  a  committee  of  not 
less  than  three  members  of  the  bar,  who  shall  examine  the 
applicant,  and  if,  after  such  examination,  the  committee 
shall  make  a  favorable  report  as  to  the  competency  of  the 
applicant,  including  the  statutory  requirements,  he  may  be 
admitted  on  taking  the  required  oath.  Practicing  attorneys 
coming  from  the  states  or  territories  to  reside  here  may  be 
admitted  on  producing  a  certificate  from  the  court  where 
they  last  practiced,  upon  satisfying  the  court  as  to  their 
learning  capacity  and  good  moral  character.  Provided, 
judges  of  the  supreme  court  of  the  territory  Avho,  at  the  ex- 
piration of  their  term  of  service,  shall  be  admitted  on  applica- 
tion. 

OF  OPENING  OF  COURTS,  SETTLING  THE  DOCKET,  ETC. 

RULE  2. — The  first  day  of  each  term,  or  so  much  thereof 
as  shall  be  necessary,  shall  be  devoted  to  organizing  the 
grand  jury,  calling  the  dockets,  hearing  motions,  and  enter- 
ing judgments  in  eases  of  default  where  a  jury  is  not  re- 
quired. The  amount  in  all  cases  of  money  judgments,  taken 
by  default  of  the  defendant,  shall  be  ascertained  by  compu- 

453 


454  RULES. 

tation  made  by  the  clerk.  Provided  that  the  said  cases  may 
be  continued  by  the  court  notwithstanding  the  defendant's 
default. 

OF  PASSING  CASES  ON  THE  DOCKET. 

RULE  3. — A  case  when  called  may  be  passed,  by  consent 
of  both  parties  ;  but  if- so  passed  it  will  not  be  taken  up  until 
all  other  cases  are  disposed  of,  except  by  the  unanimous 
consent  of  the  bar  and  permission  of  the  court.  But  if 
either  party  refuses  to  consent  to  passing  the  cause  it  shall 
be  taken  up  in  its  order,  unless  sufficient  cause  be  shown  to 
the  contrary. 

OF  CONTINUANCE  OF  CASES. 

RULE  4. — All  motions  for  the  continuance  of  cases  shall 
be  presented  in  writing,  supported  by  affidavit  of  the  party 
(his  agent  or  attorney),  applying  therefor,  stating  the  facts 
on  which  the  motion  is  founded,  unless  they  appear  on  the 
record.  If  the  motion  be  based  on  the  want  of  testimony  of 
an. absent  witness,  the  party  making  the  affidavit  shall  state 
therein  what  he  expects  to  prove  by  such  witness,  and  also 
what  acts  of  diligence  he  has  used  to  procure  his  testimony. 
If  the  court  finds  the  testimony  to  be  iterial,  and  due 
diligence  has  been  used,  the  cause  may  be  continued  upon 
such  terms  as  are  hereinafter  provided,  or  as  shall  appear  to 
the  court  to  be  just  and  proper. 

In  all  cases  where  the  application  for  a  continuance  is 
based  upon  reasons  known  to  the  party  or  his  attorney,  at 
the  commencement  of  the  term,  the  motion  shall  be  filed  on 
or  before  the  second  day  thereof ;  if  not  known  until  after  the 
commencement  of  the  term,  it  shall  be  filed  at  such  time  as 
shall  be  fixed  by  the  court. 

OF  HEARING  OF  MOTIONS  FOR  CONTINUANCES. 

RULE  5. — On  thehear'figof  the  motion  for  a  continuance, 
the  affidavit  in  support  thereof  will  be  taken  as  true  ;  and  no 
contradictory,  supplemental  or  amended  affidavit,  or  state- 
ment, will  be  permitted  unless  by  special  leave  of  the  court. 


RULES.  455 

OP  MATTERS  AS  OF  COURSE. 

RULE  6. — All  cases  and  matters  pending  in  court  at  any 
time  and  not  otherwise  disposed  of  during  the  term,  will 
stand  continued  as  of  course. 

OF  DEFAULT  IN  PLEADING. 

RULE  7. — A  party  in  default  of  pleading,  may,  on  good 
cause  shown,  file  the  same  within  such  time,  and  upon  such 
terms  as  the  court  shall  order,  upon  showing  by  affidavit  or 
otherwise  that  he  has  good  cause  of  action  or  a  meritorious 
defense,  as  the  case  may  be,  and  the  pleadings  prepared  to 
be  filed  shall  be  presented  to  the  court  with  the  affidavit. 

OF  DEPOSITIONS. 

RULE  8. — In  all  cases  where  depositions  are  suppressed, 
and  the  court,  on  examination  of  the  same,  shall  find  them 
to  be  material,  the  cause  shall  be  continued  for  that  term,  on 
the  application  of  the  party  whose  depositions  are  sup- 
pressed, unless  the  objections  to  the  depositions  be  waived, 
but  no  continuance  for  defect  of  the  depositions  of  the  same 
witnesses  shall  be  allowed  more  than  once. 

OF  DILATORY  MOTIONS. 

RULE  9. — No  mere  dilatory  motion  will  be  allowed  to  be 
made  in  any  case  at  issue  after  the  first  day  of  the  term,  ex- 
cept motions  to  dismiss,  for  want  of  jurisdiction  and  for  a 
continuance  of  the  cause. 

OF  FILING  PAPERS. 

RULE  10. — Every  paper  filed  in  a  cause  shall  have  indorsed 
thereon  the  name  of  the  paper  and  the  cause  to  which  it 
belongs,  and  the  name  of  the  attorney  filing  the  same. 
When  not  so  indorsed  the  paper  may,  on  motion,  be  stricken 
from  the  files. 

OF  MOTIONS. 

RULE  11. — All  motions  not  of  course  shall  be  made  in 
writing,  specifying  cause  for  the  same,  and  when  founded 
on  matters  of  fact  not  appearing  in  the  pleadings,  or  other 


456  RULES. 

proceedings  in  the  case,  must  be  supported  by  affidavit, 
which  shall  be  filed  with  the  motion.  And  no  motion  will 
be  heard  except  by  special  order  of  the  court,  unless  written 
notice  thereof  shall  be  served  upon  the  opposite  attorney  at 
least  three  days  prior  to  the  time  fixed'for  such  hearing,  if 
the  attorney  lives  in  the  same  county,  or  at  least  five  days 
prior  thereto  if  the  attorneys  live  in  different  counties. 

OF  THE  HEARING  OF  MOTIONS. 

RULE  12. — Attorneys  in  attendance  on  the  court  will  be 
called  on  by  name  alphabetically  each  morning,  for  the 
entry  of  motions  and  disposal  thereof,  and.  no  attorney  will 
be  heard  on  any  motion  except  when  his  name  is  called  in 
its  regular  order.  Provided,  that  this  rule  shall  not  apply 
or  be  in  force  during  the  trial  of  a  cause. 

OF  JUDGMENTS  BY  DEFAULT. 

RULE  13. — When  a  default  has  been  entered  for  want  of 
an  appearance,  of  a  plea,  or  from  any  other  cause,  it  will  be 
set  aside  only  upon  an  affidavit  of  merit,  and  of  diligence, 
or  explaining  satisfactorily  the  want  of  diligence. 

OF  APPEARANCES. 

RULE  14. — All  causes  in  which  no  counsel  shall  be  entered 
on  the  docket,  and  no  appearance  is  entered  when  the  case 
is  called  for  trial,  shall  be  dismissed.  Provided,  that  noth- 
ing in  this  rule  shall  be  so  construed  as  to  prevent  a  suitor 
from  appearing  and  conducting  his  own  case. 

OF  NOTICE  TO  PRODUCE  PAPERS. 

RULE  15. — Notices  to  produce  papers  to  be  used  on  a  trial 
must  be  in  writing  when  served  on  the  opposite  party,  and 
the  same  notice  will  be  required  as  stated  in  Rule  11,  unless 
barred  by  special  order  of  court. 

OF  THE  AMENDMENT  OF  PLEADINGS. 
RULE  16. — A  party  having   obtained   leave    to  amend  a 
pleading,  who  fails  to  do  so  within  the  time  limited,  shall 
be  considered  as  electing  to  abide  by  his  former  pleading. 


RULES.  457 

And  in  no  case  of  amendment  shall  the  original  pleading  be 
withdrawn  from  the  files,  or  obliterated,  unless  leave  be 
given  to  substitute  the  amendment  for  the  original  pleading; 
nor  shall  the  amendment  be  made  by  erasure  or  interlinea- 
tion, except  by  special  leave  of  the  court. 

OF  DEPOSITIONS  IN  TERM  TIME. 

RULE  17. — Depositions  to  be  used  in  this  court  shall  not 
be  taken  in  term  time  except  by  consent,  unless  the  court, 
for  special  reasons,  shall  otherwise  order.  A  motion  for 
leave  to  take  depositions  during  any  term  of  the  court  shall 
be  in  writing,  and  shall  state  particularly  the  reasons  for 
taking  them,  which  application  shall  be  supported  by  affi- 
davit. 

OF  THE  ORDER  OF  TRIAL  OF  CAUSES. 
RULE  18. — Causes  will  be  called  for  trial  in  the  order  in 
which  they  stand  upon  the  docket,  and  parties  will  be  re- 
quired to  be  in  readiness  for  trial  at  any  time  at  which  the 
cause  shall  be  reached- 

OF  THE  DUTIES  OF  THE  CLERK. 

RULE  19. — At  least  five  days  before  the  meeting  of  the 
court  at  the  beginning  of  a  term,  the  clerk  shall  enter  upon 
the  judge's  docket  (and  shall  also  prepare  a  similar  list  for 
the  use  of  the  bar)  a  list  of  all  cases  to  be  tried,  arranged 
according  to  seniority.  And  when  said  list  is  called  over 
at  the  commencement  of  the  term  and  a  case  is  not  ready 
for  trial,  it  shall  be  passed  to  the  foot  of  the  docket,  and 
not  again  called  until  all  other  cases  are  disposed  of,  with- 
out the  unanimous  consent  of  the  bar  present  in  court,  with 
the  permission  of  the  court.  Provided,  that  this  rule  shall 
not  apply  where  either  party  insist  on  a  trial. 

OF  AMENDMENTS  OF  PLEADINGS. 

RULE  20. — Amendments  of  papers  and  pleadings  in  actions 
at  law  may  be  allowed  on  motion  in  writing  at  any  stage  of 
the  cause;  but  no  amendment  shall  be  deemed  good  cause 
for  a  continuance,  unless  the  amendment  works  a  surprise 


458  RULES. 

to  the  opposite  party,  and  this  shall  be  made  manifest  to 
the  court  by  affidavit  or  otherwise. 

OF  ARGUMENTS  BY  COUNSEL. 

RULE  21. — The  counsel  supporting  the  affirmative  in  any 
case,  shall  be  entitled  to  begin  and  close  in  the  argument  of 
any  cause  or  motion,  and  shall  in  his  opening  cite  his 
authorities  .to  the  court  and  indicate  his  line  of  argument 
upon  the  evidence  to  the  court  and  jury.  The  defense  shall 
then  open  and  cite  the  authorities  relied  upon,  and  also  the 
points  of  evidence ;  and  if  more  than  one  counsel  for  defense 
is  to  be  heard  they  shall  then  make  their  arguments.  The 
counsel  for  the  affirmative  shall  then  close,  and  shall  not 
raise  any  new  points  either  of  law  or  evidence  in  such  clos- 
ing. 

OF  OBJECTIONS  TO  DEPOSITIONS. 

RULE  22. — All  formal  objections  to  the  introduction  of 
depositions  must  be  made  in  writing  and  before  the  case  is 
called  for  trial — subject  to  the  provisions  of  the  statute  in 
such  case  made  and  provided. 

OF  IMPANELING  JURIES. 

RULE  23' — Twelve  jurors  shall  be  called  to  the  box  and 
examined  on  their  voir  dire,  if  either  party  desires  to  so 
examine  them.  After  the  parties  have  passed  for  cause,  in 
civil  cases  the  plaintiff  may  challenge  three  jurors  peremp- 
torily, and'  the  defendant  may  then  challenge  three  peremp- 
torily, and  so  on  alternately  until  the  jury  is  accepted  or 
the  peremptory  challenges  exhausted.  Either  party  passing 
a  challenge  at  the  proper  time  to  use  it,  shall  be  deemed  to 
have  waived  the  challenge. 

In  criminal  cases  punishable  capitally,  and  in  other 
felonies,  the  right  of  challenge  shall  be  exercised  as  follows : 
First,  the  prosecution  shall  have  one  and  the  defense  three, 
and  so  on  until  the  jury  be  accepted  or  the  challenges  ex- 
hausted. Either  party  failing  to  exercise  the  challenge  at 
the  proper  time  shall  be  taken  to  have  waived  the  challenge. 
But  in  either  criminal  or  civil  cases,  neither  party  shall  be 


RULES.  459 

compelled  to  exercise  any  challenge  unless  the  number  of 
twelve  shall  be  in  the  jury  box  at  the  time. 

OF  COMPUTATION  OF  JUDGMENTS. 

RULE  24. — In  all  cases  where  no  jury  trial  is  had,  the  clerk 
of  the  court  shall  make  all  assessments  of  damages  and  com- 
putations of  interest. 

OF  AGREEMENTS  TO  BE  IN  WRITING. 
RULE  25. — No  private  agreement,  stipulation  or  consent, 
between  parties  or  counsel,  in  respect  to  any  matter  or  pro- 
ceedings in  a  cause,  shall  be  alleged  or  suggested  by  either 
party  against  the  other,  unless  the  same  is  in  writing  and 
signed  by  the  party  against  whom  it  is  so  alleged  or  sug- 
gested— or  is  entered  into  in  open  court  and  noted  on  the 
clerk's  journal  or  upon  the  minutes  of  the  judge. 

OF  COSTS  IN  CASES  CONTINUED. 

RULE  26. — In  all  cases  where  application  for  the  continu- 
ance of  causes  set  down  for  trial  is  made,  except  where  the 
continuance  is  by  consent,  the  party  applying  before  the 
continuance  be  allowed,  pay  all  costs  which  have  accrued  at 
the  term. 

OF  INSTRUCTION  TO  JURIES. 

RULE  27. — When  the  court  is  asked  to  instruct  the  jury  in 
any  cause,  the  instructions  asked  for  must  be  prepared  by 
the  counsel  of  the  respective  parties,  and  submitted  to  the 
court  (legibly  and  plainly  written,  on  one  side  of  the  paper 
only,  so  that  any  one  thereof  may  be  detached  and  with- 
drawn from  the  others)  before  the  commencement  of  the 
argument  in  the  cause,  or  they  will  not  be  considered  by  the 
court.  If  required,  the  court  will  allow  time  before  the 
argument  is  commenced  for  the  preparation  of  the  instruc- 
tions asked. 

RULE  28. — The  clerk  shall,  immediately  after  the  opening 
of  court  on  each  day,  read  the  journal  entries  of  the  preced- 
ing day,  that  any  errors  occurring  therein  may  then  be  cor- 
rected. The  judge  presiding  shall,  as  soon  after  the  adjourn- 
ment of  the  term  as  practicable,  sign  the  journal  of  the  term. 


460  RULES. 

Or  CRIMINAL  TRIALS. 

RULE  29. — Trials  in  criminal  cases  will  be  at  the  term  in 
which  the  indictment  is  found,  unless  cause  for  a  continu- 
ance is  shown  by  affidavit.  The  court  in  its  discretion  may 
receive  oral  or  written  statement  of  the  prosecuting  attorney 
for  a  continuance,  in  lieu  of  an  affidavit. 

OF  PROCLAMATION  IN  JUDGMENTS  BY  DEFAULT. 
RULE  30. — All  proclamations  of  judgments  by  default,  of 
forfeiture    of    bonds  or    recognizances,  decrees    in  divorce 
cases,  etc.,  shall  be  in  accordance  with  forms  to  be  approved 
by  the  court. 

OF  AMENDMENTS  TO  RULES. 

RULE  31. — These  rules  may  be  altered,  enlarged,  or  re- 
duced from  time  to  time  by  the  supreme  court. 


EXTRA  ANNOTATION 

TO 

PRECEDING   VOLUME 


NOTES 


ON  THE 


WYOMING    EEPOKTS 


VOL.  I. 


INCLUDING  THE   CITATIONS  OF  EACH   CASE  AS  A  PREC- 
EDENT   (1)   BY  ANY  COURT  OF  LAST  RESORT  IN  ANY 
JURISDICTION   OF   THIS    COUNTRY;    (2)   BY  THE 
EXTENSIVE  AND  THOROUGH  ANNOTATIONS 
OF  THE  LEADING  ANNOTATED  REPORTS. 


CHICAGO: 

CALLAQIIAN  &  COMPANY 
1911 


COPYRIGHT,  1911 

BY 
CALLAGHAX  &  COMPANY 


NOTES 

ON  THE 

WYOMING  REPORTS. 

OASES  IN  1  WYOMING. 


1  WYO.  17,  WESTERN  U.  TELEG.  CO.  v.  MONSEAU. 

Reversal  of  decision  as  against  evidence. 

Cited  in  Ketchum  v.  Davis,  3  Wyo.  164,  13  Pac.  15,  holding  that 
decision  will  not  be  reversed  unless  findings  are  so  clearly  against  evi- 
dence as  to  show  that  court  was  improperly  influenced;  Rainsford  v. 
Massengale,  5  Wyo.  1,  35  Pac.  774,  holding  that  verdict  will  not  be 
set  aside  unless  clearly  against  weight  of  evidence,  or  not  sustained 
by  sufficient  evidence. 

1  WYO.  20,  TERRITORY  v.  ANDERSON. 
1  WYO.  21,  JOHNSON  v.  MARION. 
1  WYO.  22,  MARTIN  v.  MOORE. 

1  WYO.   25,  CANNIER  v.  HAASE. 

Motion  to  dismiss  appeal  as  proper  remedy. 

Cited  in  Force  v.  State,  14  Wyo.  296,  83  Pac.  596,  holding  that  proper 
method  of  raising  question  that  proceeding  in  error  was  not  commenced 
in  time  is  by  motion  to  dismiss. 

1   WYO.   27,  UNION  P.  R.   CO.  v.  HAUSE. 

Liability  for  torts  of  independent  contractor. 

Cited  in  note  in   65  L.R.A.  643,  on  general  rules  as  to  absence  of 
liability  of  employer  for  torts  of  independent  contractor. 
Recovery  of  exemplary  damages. 

Cited  In  Denver  &  R.  G.  R.  Co.  v.  Scott,  34  Colo.  99,  81  Pac.  763, 
holding  that  exemplary  damages  are  not  recoverable,  where  fireman  is 
injured  by  jumping  from  locomotive  because  brakes  did  not  work  on 
down  grade;  Cosgriff  Bros.  v.  Miller,  10  Wyo.  190,  98  Am.  St.  Rep. 

1 


1  Wyo.]  NOTES  ON  WYOMING  REPORTS.  2 

977,  68  Pac.  206,  holding  that  exemplary  damages  are  recoverable  in 
suit  for  trespass,  when  defendants  repeatedly  drove  their  sheep  on 
plaintiffs  land  and  pastured  them  there  under  care  of  armed  men. 
Excessive  or  insufficient  verdicts. 

Cited  in  Sutherland,  Dam.  3d  ed.  2810,  on  duty  of  court  to  set  aside 
verdict  which  is  so  excessive  or  so  small  as  to  induce  belief  that  jury 
have  not  given  case  fair  and  dispassionate  consideration. 

Cited  in  notes  in  14  L.R.A.  681,  on  excessive  verdicts  in  suits  for 
personal  injuries;  26  L.R.A.  394,  on  power  of  appellate  court  over 
verdict  for  excessive  damages. 

1  WYO.  3C,  MURRIN  v.  ULLMAN. 

Necessity  of  exceptions   in   bill   of  exceptions   to  review  of  ob- 
jections. 

Cited  in  Johns  v.  Adams,  2  Wyo.  194;  Boulter  v.  State,  6  Wyo.  66, 
42  Pac.  606, — holding  that  grounds  for  new  trial  will  not  be  con- 
sidered by  supreme  court,  unless  presented  to  court  below  by  motion 
for  new  trial  and  exception  taken  and  embodied  in  bill  of  exceptions. 

1  WYO.   37,  GEEK  v.  MURRIN. 

Necessity  of  exceptions  in  bill  of  exceptions   to   review   of   ob- 
jections. 

Cited  in  Johns  v.  Adams,  2  Wyo.  194;  Boulter  v.  State,  6  Wyo.  66, 
42  Pac.  606, — holding  that  grounds  for  new  trial  will  not  be  considered 
by  supreme  court,  unless  presented  to  court  below  by  motion  for  new 
trial  and  exception  taken  and  embodied  in  bill  of  exceptions. 

1  WYO.  39,  HORTON  v.  PEACOCK. 

1   WYO.   40,   SCOTT  v.  UNITED   STATES. 
Conflict  of  state  and  Federal  jurisdiction. 

Cited  in  note  in  17  L.R.A.  721,  on  state  jurisdiction  over  lands  of 
United  States  within  state. 

Disapproved  in  Territory  v.  Burgess,  8  Mont.  57,  1  L.R.A.  808,  19 
Pac.  558,  holding  that  territorial  district  court  has  jurisdiction  over 
murder  committed  "on  military  reservation. 

1  WYO.  41,  IVINSON  v.  TERRITORY. 

1  WYO.    41,  ROGERS  v.  LOWRY. 

1  WYO.  42,  ROGERS  v.  COLLINS. 

1  WYO.   42,  SEARS  v.  ALBANY  COUNTY. 


3  NOTES  ON  WYOMING  REPORTS.  [27-82 

1   WYO.  42,  WILSON  v.   O'BRIEN. 

Necessity  of  motion  for  new  trial  to  review  of  errors  as  to  evi- 
dence. 

Cited  in  Ross  v.  State,  16  Wyo.  283,  94  Pac.  217,  holding  that 
incompctency  of  witness  cannot  be  considered  on  error,  where  it  was 
not  assigned  as  ground  in  motion  for  new  trial,  nor  assigned  as  error. 

1    WYO.    45,   GREAT  WESTERN   INS.   CO.   v.   PIERCE. 
1   WYO.   51,  WILSON  v.  ROGERS. 
1   WYO.  57,  IIORTON  v.  PEACOCK. 

1  WYO.   61,  DONNELLAN  v.  NICHOLAS. 

Payment    of    money    from    treasury    without    legislative    appro- 
priation. 

Cited  in  State  ex  rel.  Henderson  v.  Burdick,  4  Wyo.  272,  24  L.R.A. 
266,  33  Pac.  125,  holding  that  provision  in  act  creating  office  of  state 
examiner  as  to  his  salary  operates  as  appropriation,  so  that  no  special 
appropriation  by  legislature  is  necessary. 

Cited  in  note  in  16  L.R.A. (N.S.)  633,  on  requisites  of  appropriation 
for  official  salary  or  expenses. 

1    WYO.    67,  WOLCOTT  v.   TERRITORY. 

Criminal  jurisdiction  of  justice  of  peace. 

Cited  in  People  ex  rel.  Yearian  v.  Spiers,  4  Utah,  385,  10  Pac.  609, 
holding  that  justice  of  peace  has  no  jurisdiction  over  crime  of  resorting 
to  house  of  ill-fame. 

1  WYO.  71,  IVINSON  v.  AI/THROP. 

Liquidated  damages. 

Cited  in  Sutherland,  Dam.  3d  ed.  735,  on  favorable  consideration  of 
stipulation  to  liquidate  where  actual  damages  cannot  be  ascertained  by 
any  standard. 

1  WYO.  78,  FIELDS  v.  TERRITORY,  3  AM.  CRIM.  REP.   318. 

Evidence  of  different  offenses  under  one  indictment. 

Disapproved  in  State  v.  Heinze,  45  Mo.  App.  403,  holding  that  prosecu- 
tion is  not  compelled  to  elect  which  of  several  ofTensPs  brought  out 
in  evidence  it  will  go  to  jury  on. 

1  WYO.   82,  PHILLIPS  v.  TERRITORY. 

Reversal  of  conviction  as  against  evidence. 

Cited  in  Cornish  v.  Territory,  3  Wyo.  9.~>,  ?,  Pac.  733,  holding  that 
conviction  will  not  be  disturbed  where  there  is  material  evidence  tend- 
ing to  support  it. 


1  Wyo.]  NOTES  ON  WYOMING  REPORTS.  4 

1  WYO.  85,  BROWN  v.  NASH. 

Examination   of   legislative   journals    to   determine   validity   of 
statute. 

Cited  in  Union  Bank  v.  Oxford,  119  N.  C.  214,  34  L.R.A.  487,  25  S. 
E.  966;  Ritchie  v.  Richards,  14  Utah,  345,  47  Pac.  670;  State  ex  rel. 
Cheyenne  v.  Swan,  7  Wyo.  166,  40  L.R.A.  195,  75  Am.  St.  Rep.  889, 
51  Pac.  209;  State  ex  rel.  Hynds  v.  Cahill,  12  Wyo.  225,  75  Pac.  433,— 
holding  that  in  determining  whether  statute  has  been  constitutionally 
enacted,  legislative  journals  are  competent  evidence  to  be  consulted 
by  courts. 

Cited  in  note  in  23  L.R.A.  344,  on  conclusiveness  of  enrolled  bill. 
Right  of  school  districts  to  school  moneys. 

Cited  in  Powder  River  Cattle  Co.  v.  Johnson  County,  3  Wyo.  597, 
29  Pac.  361,  holding  that  taxes  levied  for  support  of  schools  of  county 
are  not  taxes  for  county  purposes,  but  fund  so  raised  belongs  to  school 
districts. 

1  WYO.  96,  UNION  P.  R.  CO.  v.  CARR. 

Proper  remedy  to  determine  locus  of  assessment. 

Cited  in  Allison  v.  Hatton,  46  Or.  370,  80  Pac.  101,  holding  that  suit 
by  taxpayers  to  restrain  sale  of  lands  for  taxes  is  proper  remedy  to 
determine  in  which  county  plaintiffs'  lands  were  subject  to  assessment. 

Cited  in  High,  Inj.  4th  ed.  515,  on  right  to  injunction  to  prevent  mu- 
nicipality from  enforcing  tax  against  property  in  another  jurisdiction. 
Invalidity  of  act  illegally  passed  by  legislature. 

Cited  in  Union  Bank  v.  Oxford,  119  N.  C.  214,  34,  L.R.A.  487,  25  S. 
E.  966;  State  ex  rel.  Cheyenne  v.  Swan,  7  Wyo.  166,  40  L.R.A.  195, 
75  Am.  St.  Rep.  889,  51  Pac.  209, — holding  that  where  legislative  jour- 
nals show  affirmatively  that  act  was  not  passed  with  required  formal- 
ities, such  act  is  not  a  law. 

Cited  in  note  in  23  L.R.A.  344,  on  conclusiveness  of  enrolled  bill. 

1  WYO.   105,  McGLINCHEY  v.  MORRISON. 
1  WYO.  108,  WILSON  v.  FIRST  NAT.  BANE. 

1  WYO.    112,  KINSLER  v.  TERRITORY. 

Reversible  error  in  sentencing  prisoner. 

Cited  in  State  v.  Hoyt,  47  Conn.  518,  36  Am.  Rep.  89,'  holding  that 
failure,  in  sentencing  prisoner,  to  make  inquiry  whether  he  has  anything 
to  say,  is  not  reversible  error. 
Asking  what  prisoner  has  to  say. 

Cited  in  Abbott's  Crim.  Tr.  2d  ed.  752,  on  right  of  court,  during  term, 
to  expunge  sentence  imposed  without  asking  what  prisoner  has  to  say. 

1  WYO.    114,  WILSON  v.  TERRITORY. 


6  NOTES  ON  WYOMING  REPORTS.  [85-168 

1  WYO.   121,  BRENNAN  v.  HEENAN. 

1  WYO.   131,  HAMILTON  v.  TERRITORY. 

1    WYO.    137,    LARAMIE   COUNTY   v.    ALBANY    COUNTY,    Af- 
firmed in  92  U.  S.  307,  23  L.  <•<!.   552. 
Liability  of  divided  county. 

Cited  in  Re  Fremont  &  B.  H.  Counties,  8  Wyo.  1,  54  Pac.  1073,  hold- 
ing that  county,  after  loss  of  part  of  its  territory,  is  responsible  for 
indebtedness  of  original  county  at  time  of  division,  in  absence  of  con- 
trary constitutional  or  statutory  provision. 

Cited  in  note  in  20  A.  S.  R.  677,  on  relation  of  new  counties  and  their 
officers  to  old  counties. 

1  WYO.  143,  MARTIN  v.  UNION  P.  R.  CO. 

1  WYO.    149,  WALDSCHMIDT  v.  TERRITORY. 

1  WYO.  155,  WILSON  v.  TERRITORY. 

Requisites  of  jurisdiction   in   contempt  proceedings. 

Distinguished  in  Ex  parte  Bergman,  3  Wyo.  396,  26  Pac.  914,  holding 
that  order  to  show  cause  in  contempt  proceedings,  not  styled  in  name 
of  state,   is  not  void,   where   defendant  voluntarily   submits   to   order 
without  raising  question  of  jurisdiction. 
—  Necessity  of  affidavit  as  to  constructive  contempt. 

Cited  in  People  ex  rel.  Atty.  Gen.  v.  News-Times  Pub.  Co.  35  Colo. 
253,  84  Pac.  912  (dissenting  opinion),  on  necessity  of  affidavit,  stat- 
ing facts  constituting  constructive  contempt;  Thomas  v.  People,  14 
Colo.  254,  9  L.R.A.  569,  23  Pac.  326;  Wyatt  v.  People,  17  Colo.  252, 
28  Pac.  961;  State  v.  Henthorn,  46  Kan.  613,  26  Pac.  937,— holding  it 
error  to  issue  attachment,  etc.,  for  constructive  contempt,  without 
prior  filing  of  affidavit  of  facts  constituting  contempt;  State  ex  rel. 
Thatcher  v.  Homer,  16  Mo.  App.  191,  holding  affidavit,  stating  facts 
as  to  contempt,  necessary  to  validity  of  order  punishing  for  contempt; 
Cooley  v.  State,  46  Neb.  603,  65  N.  W.  799,  holding  that  order  to  show 
cause  is  not  sufficient  foundation  for  proceedings  for  constructive  con- 
tempt, where  it  fails  to  state  facts  constituting  alleged  offense. 

1  WYO.  157,  CARR  v.  WRIGHT. 

1   WYO.   168,  TERRITORY  v.  PIERCE. 

Grounds   for   motion    in  arrest   of  judgment. 

Cited  in  McGinnis  v.  State,  17  Wyo.  106,  96  Pac.  525,  holding  that 
fact  that  amended  information  was  filed  without  leave  is  nut  proper 
ground  for  motion  in  arrest  of  judgment. 


1  Wyo.]  NOTES  ON  WYOMING  REPORTS.  8 

1   WYO.   172,  BONNIFIELD  v.  PRICE. 

Demurrer  on  ground  that  action  is  barred. 

Cited  in  Upton  v.  McLaughlin,  105  U.  S.  640,  26  L.  ed.  1197;  Colum- 
bia Sav.  &  L.  Asso.  v.  Clause,  13  Wyo.  166,  78  Pac.  708,— holding  that 
objection  that  action  is  barred  by  statute  of  limitations  may  be  raised 
by  demurrer,  where  it  appears  on  face  of  petition. 

Disapproved  in  Price  v.  Bonnifield,  2  Wyo.  80,  holding  that  demurrer 
to  petition,  which  shows  on  face  that  action  is  barred  by  statute  of 
limitations,  should  not  be  sustained. 

1  WYO.   178,  IVINSON  v.  BUTTON,  Reversed  in  98  U.  S.   79, 
25  !L.  ed.  66. 

1   WYO.    187,   DOL.AN  v.   CHURCH. 
1  WYO  190,  HELL.MAN  v.  WRIGHT. 
1  WYO.   194,  WAGNER  v.  HARRIS. 

1  WYO.  202,  BROWN  v.  ILGES. 

Jurisdiction  over  military   reservations. 

Distinguished  in  Territory  v.  Burgess,  8  Mont.  57,  1  L.R.A.  808,  19 
Pac.  558,  holding  that,  territorial  district  court  has  jurisdiction  over 
murder  committed  on  military  reservation. 

1   WYO.   206,  DUNN  v.  HEREFORD. 

Part  performance  of  contract  for  services. 

Cited  in  notes  in  24  L.R.A.  232,  on  effect  of  part  performance  of  con- 
tract for  services;  5  L.R.A. (N.S.)  441,  on  right  of  wrongfully  dis- 
charged servant  to  wages  for  contract  period  subsequent  to  discharge. 

1  WYO.  210,  REGAN  v.  JONES. 

1    WYO.    213,    GREGORY   v.    MORRIS,    Affirmed    in    90    U.    S. 

619,  24  Li.  ed.  740. 
Reversal  for  nonconformity  of  verdict  in  replevin  to  code. 

Cited  in  Ulrich  v.  McConaughey,  63  Neb.  10,  88  N.  W.  150,  holding 
that  failure  of  verdict  in  replevin  to  conform  to  code  is  not  reversible 
error,  if  party  complaining  is  not  prejudiced  thereby. 
Rights  of  conditional  seller. 

Cited  in  note  in  133  A.  S.  R.  568,  on  rights  and  remedies  of  Qondi- 
tional  seller  on  buyer's  default  in  payment. 

1   WYO.   223,  BONNIFIELD  v.  PRICE. 

Conflict  of  laws  as  to  statute  of  limitations. 

Cited  in  Parmele's  Whart.  Confl.  L.  (3d  ed.)  1247,  on  bar  of  debt 
outlawed  by  lex  fori. 


7  NOTES  ON  WYOMING  REPORTS.  [172-287 

Cited  in  notes  in  48  L.R.A.  644,  as  to  when  statute  of  limitations 
will  govern  action  in  another  state  or  country;   4  L.R.A. (N.S.)    1031, 
on  construction  and  effect  of  statute  of  forum  admitting  bar  of  stat- 
ute of  jurisdiction  in  which  cause  of  action  arises  or  accrues. 
Res  adjudicate. 

Cited  in  Gilmer  v.  Morris,  30  Fed.  476,  holding  that  judgment,  sus- 
taining demurrer  on  ground  that  action  was  barred,  is  no  bar  to  second 
action. 

1  WYO.  235,  BOSWELL  v.  ALBANY  COUNTY. 

1  WYO.   240,  BATH  v.  LINDENMYER. 

1   WYO.  245,  BONNIFIELD  v.  PRICE. 

1    WYO.    240,   FEIN  v.   UNITED   STATES. 

1  WYO.  251,  IVINSON  v.  AI.SOP. 

1   WYO.   255,  WOLCOTT  v.  FEE. 

1   WYO.   259,  RUMSEY  v.  WOLCOTT. 

1  WYO.  263,  DAYTON  v.  WYOMING  NAT.  BANK. 

1  WYO.  270,  IVINSON  v.  HANCE. 

Exemption  of  public  property  from   taxation. 

Cited  in  Cooley,  Tax.  3d  ed.  135,  on  right  of  state  to  tax  federal 
lands  within  state. 

Cited  in  note  in  22  Eng.  Rul.  Cas.  446,  on  exemption  of  public  prop- 
erty from  taxation. 
Injunction    against    collection    of    tax. 

Cited  in  Cooley,  Tax.  3d  ed.  1418,  on  power  of  court  of  equity  to 
enjoin  collection  of  illegal  tax. 

Cited  in  note  in  69  A.  D.  200,  on  injunction  against  collection  of  taxes 
and  assessments. 

1    WYO.    277,   IVINSON  v.   PEASE. 
1    WYO.    280,    BATH   v.    INGERSOI/L. 
1   WYO.  284,  ALSOP  v.  HUTTON. 

1    WYO.    287.   JENKINS  v.   CHEYENNE. 

Nature  of  action    for  violation   of  ordinance. 

Cited  in  Huron  v.  Carter,  5  S.  D.  4,  57  N.  W.  947.  holding  that  action 


1  Wyo.]  NOTES  ON  WYOMING  REPORTS.  8 

for  penalty  prescribed  by  municipal  ordinance  for  act,  not  criminal  by 
law  of  state,  is  civil  action. 

Cited  in  note  in  33  L.R.A.  44,  on  proceedings  for  violations  of  ordi- 
nances as  prosecutions  for  crime. 

1  WYO.  292,  ALBANY  COUNTY  v.  BOS  WELL. 

1  WYO.  301,  TRADING  v.  ALBANY  COUNTY. 

Right  to  injunction. 

Cited  in  note  in  30  L.R.A.  568,  on  injunctions  against  judgment  for 
matters  subsequent  to  rendition. 

1  WYO.  303,  EMERY  v.  HAWLEY. 

1  WYO.  307,  UNION  P.  R.  CO.  v.  WILSON. 

i  WYO.  311,  MCCARTHY  v.  TERRITORY. 

Sufficiency  of  indictment. 

Cited  in  McGinnis  v.  State,  16  Wyo.  72,  91  Pac.  936,  holding  that 
indictment  for  robbery  is  fatally  defective  which  fails  to  state  owner- 
ship of  property. 

1  WYO.  316,  GLAFCKE  v.  O'BRIEN. 

Requisites  of  supersedeas. 

Cited  in  Mo/ton  v.  Western  Seed  &  Irrig.  Co.  2  Neb.  (Unof.)  131,  96 
N.  W.  183,  holding  that  to  supersede  judgment,  transcript  as  well  aa 
petition  in  error  must  be  filed  in  supreme  court. 

1  WYO.  317,  JENKINS  v.  TERRITORY. 

Necessity  of  proper  record  for  review. 

Cited  in  Boulter  v.  State,  6  Wyo.  66,  42  Pac.  606,  holding  that  noth- 
ing which  could  have  been  assigned  as  ground  for  new  trial  will  be 
reviewed,  unless  so  presented  in  court  below  and  excepted  to  and  em- 
braced in  bill  of  exceptions. 

1  WYO.  318,  TERRITORY  v.  RITTER. 

Liability  of  sureties  on  official  bond. 

Cited  in  Brandt,  Suretyship,  3d  ed.  1294,  on  liability  of  sureties  on 
bonds  of  ex  officio  officers. 

Cited  in  note  in  91  A.  S.  R.  503,  579,  on  acts  for  which  sureties  on 
official  bonds  are  liable. 
Effect  of  making  officer  ex-officio  officer  of  another  olfice. 

Cited  in  State  ex  rel.  Davenport  v.  Laughton,  19  Nev.  202,  8  Pac. 
344,  holding  that  failure  of  lieutenant-governor  to  give  bond  as  ex 
officio  state  librarian  did  not  create  vacancy  in  office  of  lieutenant-gov- 
ernor. 

Distinguished  in  Reals  v.  Smith,  8  Wyo.  159,  56  Pac.  690,  holding 


9  NOTES  ON  WYOMING  REPORTS.  [287-361 

statute,  repealing  act  making  treasurer  ex-officio  assessor,  constitutional 
as  against  objection  that  effect  of  act  waa  to  remove  person  elected 
treasurer  from  office  of  assessor. 

1    WYO.    336,   WYOMING  NAT.   BANK  v.   DAYTON,   Reversed 

In  102  U.  S.  59,  26  L.  ed.  11. 
Reversal  of  decision  as  against  evidence. 

Cited  in  Ketchum  v.  Davis,  3  Wyo.  164,  13  Pac.  15,  holding  that  de- 
cision of  trial  court  will  not  be  reversed,  unless  findings  are  so  clear* 
ly  against  weight  of  evidence  as  to  show  that  court  was  improperly  in- 
fluenced; Rainsford  v.  Massengale,  5  Wyo.  1,  35  Pac.  774,  holding  that 
finding  of  court  on  question  of  fact  will  not  be  set  aside,  unless  hot 
sustained  by  sufficient  evidence  or  clearly  against  weight  of  evidence; 
Hester  v.  Smith,  5  Wyo.  291,  40  Pac.  310,  holding  that  judgment  will 
not  be  reversed  in  case  of  conflicting  testimony,  where  there  is  evidence 
to  sustain  finding;  Marshall  v.  Rugg,  6  Wyo.  270,  33  L.R.A.  679,  44  Pac. 
700,  holding  that  court  will  not  weigh  evidence  and  decide  which  party 
has  preponderance  when  matter  has  been  properly  submitted  to  jury. 

1    WYO.    348,   NORTH  v.   McDONALD,   Affirmed   in    154   U.    S. 

649,  Appx.  and  25  L.  ed.  535,  14  Sup.  Ct.  Rep.  1,207. 
Power  of  district  court  to  nonsuit. 

Distinguished  in  Mulhern  v.  Union  P.  R.  Co.  2  Wyo.  465,  holding 
that  district  court  has  no  authority  to  order  peremptory  non-suit 
against  will  of  plaintiff. 

1    WYO.   352,  BYRNE  v.  MYERS. 

Reversal  of  decision  as  against  evidence. 

Cited  in  Ketchum  v.  Davis,  3  Wyo.  164,  13  Pac.  15,  holding  that  de- 
cision of  trial  court  will  not  be  reversed,  unless  so  clearly  against  evi- 
dence as  to  show  that  court  was  improperly  influenced;  Rainsford  v. 
Massengale,  5  Wyo.  1,  35  Pac.  774;  holding  that  verdict  of  court  will 
not  be  set  aside,  unless  not  sustained  by  sufficient  evidence  or  clearly 
against  weight  of  evidence. 

1  WYO.  355,  UINTA  COUNTY  v.  HINTON. 

1  WYO.  355,  MOSHER  v.  HILLIARD  FLUME  &  LUMBER  CO. 

1  WYO.   356,  JUBB  v.  THORPE. 

1   WYO.   358,  NAGLE  v.  RUTLEDGE.  Writ  of  error  dismissed 
in    100   U.   S.    675,   25   L.  ed.    772. 

1  WYO.  361,  FREEMAN  v.  CROUT. 


1  Wyo.]  NOTES  ON  WYOMING  REPORTS.  10 

1  WYO.  366,  WILD  v.  STEPHENS. 

1  WYO.  376,  FEIN  v.  TERRITORY. 
Malicious  mischief. 

Cited  in  note  in  128  A.  S.  R.  172,  on  malicious  mischief. 

1  WYO.  382,  McCARTENEY  v.  WYOMING  NAT.  BANK. 
Right  of  stranger  to  sue  on  contract. 

Cited  in  note  in  71  A.  S.  R.  178,  202,  on  right  of  third  person  to  sue 
on  contract  made  for  his  benefit. 
Assumption  of  partnership  debts. 

Cited  in  note  in  9  L.R.A.(N.S.)  95,  96,  on  assumption  of  debts  on  dis- 
solution of  partnership. 

1  WYO.   389,  DEAR  v.  TRACY. 

1  WYO.  392,  PEASE  v.  TERRITORY. 

1  WYO.  395,  WHITE  v.  SISSON,  W.  &  CO. 

1   WYO.   396,  HILLIARD  FLUME  &  LUMBER  CO.  T.  WOODS. 

Vacation  of  verdict  as  against  evidence. 

Cited  in  Fein  v.  Tonn,  2  Wyo.  113;  Fein  v.  Davis,  2  Wyo.  118;  Ketch- 
urn  v.  Davis,  3  Wyo.  164,  13  Pac.  15;  Rainsford  v.  Massengale,  5  Wyo. 
1,  35  Pac.  774;  Marshall  v.  Rugg,  6  Wyo.  270,  33  L.R.A.  679,  44  Pac. 
700, — holding  that  verdict  will  not  be  set  aside,  unless  not  sustained 
by  sufficient  evidence  or  so  clearly  against  weight  of  evidence  as  to  be 
manifestly  result  of  prejudice^  etc. 
Measure  of  damages  for  conversion. 

Cited  in  Sutherland,  Dam.  3d  ed.  3295,  on  value  at  place  and  time  of 
conversion  determining  measure  of  damages. 

1  WYO.  413,  LEE  v.  COOK. 

Retroactive  construction  of  statutes. 

Cited  in  Larkin  v.  Saffarans,  15  Fed.  147,  holding  that  act  of  con- 
gress enlarging  jurisdiction  of  circuit  court  will  be  construed  to  apply 
to  cases  pending,  unless  excluded  by  terms  or  necessary  implication. 

Cited  in  Sutherland  Stat.  Const.  2d  ed.  643,  on  validity  of  retro- 
spective statutes  affecting  remedies. 


001  166733     4 


